Dismissed election petition: CoA sets Feb 8 for oral arguments




The Court of Appeal (CoA) of Guyana has fixed February 8, 2023 to commence hearing arguments in an appeal against the acting Chief Justice’s decision to dismiss the APNU/AFC’s second election petition, in which the party had, among other things, sought to have the results of the March 2020 General and Regional Elections invalidated.

In October, the CoA, led by Chancellor of the Judiciary (ag) Justice Yonette Cummings-Edwards, ruled that it would proceed with hearing the appeal filed against Chief Justice Roxane George’s decision, which was rendered on April 26, 2021 and appealed against the following month.

This was after the court had decided in favour of a motion filed by Opposition-aligned lawyer Roysdale Forde, SC, to have the matter expedited in light of it being delayed for over a year-and-a-half, which he had noted was caused by the unavailability of Justice George’s written ruling, which ought to have formed part of the record of appeal that is to be prepared by the High Court.

In presenting his case, Forde had argued that as a result of the delay, petitioners Claudette Thorne and Heston Bostwick had suffered substantial prejudice, and he had gone on to blame the judiciary for what he termed institutional/systemic failure.

At a case management conference (CMC) on Wednesday, the Appellate Court set strict timelines for when the parties must file written submissions and submissions in reply, after being informed that the full record of appeal was in order and served on everyone. The court will meet again on February 8, 2023 at 09:30h to hear arguments.

Before the Chief Justice, Thorne and Bostwick had contended that the election results must be invalidated on the ground of serious non-compliance with the Constitution and electoral laws as they relate to the Guyana Elections Commission’s (GECOM’s) conduct of those elections.

They had also 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.
But, in dismissing the petition, the Chief Justice had held that the petitioners had failed to present evidence to support the contention that the conduct of the elections had contravened the Constitution and electoral laws. She had ruled that neither Section 22 nor the Recount Order was ultra vires the Constitution, adding that Article 162 of the Constitution empowered GECOM to take whatever actions were necessary to conclude the elections, including embarking on a recount of all ballots.

Alluding to the events that occurred after the close of polls, Justice George had noted, “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 [Recount] Order if GECOM considered it necessary or expedient to ensure impartiality, fairness, and compliance…as regards the election process.”

However, Coalition lawyers in their appeal contended that Justice George 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 them, by virtue of their application for the election results to be declared invalid, both Section 22 and Order #60, which flowed directly from Article 162 of the Constitution, were in conflict with and/or contravened Article 177 of the Constitution.

In court documents seen by this publication, they further argued 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 (RoPA).

The petitioners had submitted that Justice George erred in law when she failed to find that the mechanisms set out in Order No #60 amounted to a substantial variation from the RoPA, and consequently could not be said to have “merely modified” the said Act.

Besides that, they complained that she erred in law when she ruled that they did not produce evidence substantiating their claim that the elections were not lawfully conducted. Like they had done 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 by the Returning Officers and the recount figures.

Thorne and Bostwick, among other things, argued that the Chief Justice 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 the results of the elections were declared pursuant to Order #60 from a letter by former Chief Elections Officer (CEO) Keith Lowenfield to GECOM’s Chairperson, retired Justice Claudette Singh.

Ultimately, they are also asking the court to declare that President Dr Irfaan Ali is illegally holding office. The results of a national recount of all ballots cast showed that the PPP/C won the general elections with 233,336 votes over the Coalition’s 217,920 votes.

Both of APNU/AFC’s election petitions have been dismissed by the Chief Justice. In January 2021, she dismissed the election petition filed by Brennan Nurse and Monica Thomas owing to their non-compliance with effecting service on the Coalition’s Presidential Candidate, David Granger.

The party had appealed her ruling to the Court of Appeal, which, by a majority decision on December 21, 2021, held that it had jurisdiction to hear an appeal against a ruling of the High Court to dismiss an election petition on the basis of procedural impropriety.

In so doing, the Court of Appeal rejected arguments by Attorney General and Legal Affairs Minister Anil Nandlall, SC, that because the petition was not heard on its merits, the court had no jurisdiction to hear and determine the appeal; neither from statute nor from the Constitution, nor does it have inherent jurisdiction.

In a consolidated appeal before the Caribbean Court of Justice (CCJ), Nandlall, and Vice President Dr Bharrat Jagdeo, in his capacity as General Secretary of the PPP/C, argued that the Court of Appeal’s ruling was erroneous and consequently should be overturned.

The Trinidad-based court of final resort, in October, held that the local appeal court erred when it took jurisdiction to hear an election dismissed for the reasons listed by the Chief Justice, and thus quashed the decision rendered by that court.

Given the ruling of the country’s apex court, the Chief Justice’s decision was restored, and this petition can no longer be heard, since the petitioners have exhausted all their right of appeal.

The manner of service is prescribed in Rule 9 (1) of the National Assembly (Validity of Elections) Rules, which imposes on the petitioners the statutory obligation to effect service within five days after the presentation of the petition. Having been filed on September 15, 2020, the petition should have been served on Granger five days thereafter, which would have been September 21, 2020, since the fifth day – September 20, 2020 – was a Sunday. But in Nurse’s Affidavit of Service, it was stated that the petition, along with the relevant documents, was only served on Granger on September 25, 2020 – five days outside of the statutorily prescribed period.