The Chief Justice was correct to exercise the narrow jurisdiction of the High Court to compel the Officers of the Guyana Elections Commission (GECOM) to act within the confines of the laws in the exercise of their statutory powers, according to attorney for GECOM Chair, Kim Kyte-Thomas.
Kyte-Thomas made that submission to the Appeal Court in the hearing of the appeal case of Misenga Jones v Guyana Elections Commission et al. The case is currently ongoing as lawyers for the various parties continue to make their case before Appellate Judges Justices Dawn Gregory and Rishi Persaud in association with High Court Judge, Justice Priya Sewnarine-Beharry who are presiding over the case.
Jones, through her attorneys, Trinidadian Senior Counsel John Jeremie, APNU/AFC Candidate Roysdale Forde, Keith Scotland, Mayo Robertson and Rondelle Keller – is seeking to have overturn the decision of acting Chief Justice George, which was delivered on Monday, in the case seeking to compel the Guyana Elections Commission (GECOM) to utilise the 10 declarations as the basis for announcing the winner of the March 02 elections.
CJ Roxane George had dismissed Jones’ application for judicial review on the grounds that the issues were res judicata which meant that they have already been ventilated and pronounced upon by a competent court and cannot be relitigated. In total, Jones had sought 28 reliefs from the court but all, save and except for the issue of jurisdiction, were dismissed.
She had reiterated that Chief Elections Officer, Keith Lowenfield is not a lone ranger and is subjected to the direction of the Commission. Additionally, she expressly stated that the figures from the 33-days Caricom observed national recount should form the basis for the declaration of the results.
In the appeal filings, Jones is contending that the Chief Justice erred in law when she dismissed the case.
Jones’ application listed 23 grounds for the appeal and states, among other things, that the CJ erred in law when when she held that the issues raised the case were res judicata; when she failed to find that the Chair of GECOM and or GECOM had acted outside their constitutional and or statutory power.
In today’s hearing, Kyte-Thomas called for the case to be dismissed forthwith since the issues have already been litigated via the Eslyn David and Ulita Moore matters. She told the court that almost all of the reliefs sought by Jones were also sought and decided upon in the case of Moore.
The attorney stated, that if examined and anaylsed carefully, one would come to the conclusion that Jones is asking the Court to be a party of fraud and urged the judges to desist from doing this. She furthered, by simply asking the court to order GECOM to use the figures from the March 13 Declarations of the Returning Officer and invalidating the national recount would be tantamount to the court being used as “an instrument of fraud.”
She explained that the Order 60 of 2020 (the recount order) was birthed from the issues following the case of Reeaz Holladar -which was brought by the PPP/C after RO Clairmont Mingo refused to use the Statements of Poll to tabulate the results for District 4 (Demerara – Mahaica).
Mingo had tampered with the results of his Electoral District to reflect a win by the APNU/AFC Coalition. In fact, on March 13, Mingo – in the execution of his statutory functions – declared that the APNU/AFC received 136, 057 votes in District Four when in fact the Party accumulated just 116,941 votes.
The 33-day long national recount of the ballots exposed this clear attempt at altering the will of the electorate when it proved that Mingo inflated the Coalition’s number by 19,116 votes and deflated the PPP/C’s by just over 3000.
“They (Jones’ lawyers) are asking the judicial system to set aside the recount figures which was hailed by the highest court (the Caribbean Court of Justice). They are asking to set side that and rely on the March 13 declarations – those declarations that led to GECOM exercising its power in the first place under Article 162 (of the Constitution) to ensure that they produce a transparent, credible results from the March 2 elections.
“I ask this Court not to be used as an instrument of fraud because when one analyses what they are asking you to do that is exactly what the appellant is asking this court to do,” Kyte-Thomas argued.
She noted that contention that Order 60 along with Section 22 of the Election Laws Amendment Act are unconstitutional should be frontally examined by an elections petition as ruled by the Court of Appeal in the case of Moore. The attorney also called on the court to make the distinction between what is an elections dispute and that isn’t.
On that ground, she explained that the CJ was correct to order Chief Elections Officer, Keith Lowenfield to use the figures from the recount as a basis for his final report to be presented to the Commission.
“The Chief Election Officer is not a constitutional officer. He is a statutory officer. He’s an election officer. He is not shielded by Section 141 and that is why the court intervened to tell him how to act. He can act lawfully. He can act in accordance with the laws of this lands which right now include Order 60 and that was the court telling the Chief Election Officer to act in accordance with Order 60 of 2020 which had not being set aside by our apex court or any other court. Which, I daresay, cannot be aside in an application of this nature and this type,” Kyte-Thomas proffered.
She added that the CEO cannot flout the law nor can he act in excess of the law. His report must be contained and in accordance with the law which also includes Order 60.