OPINION: GECOM has no role in hearing or determining manufactured allegations by APNU/AFC

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The following is an opinion piece by Former Attorney General and Legal Affairs Minister; Anil Nandlall

As the National Recount exercise continues to reveal the irrefutable and crude fraud perpetrated by Clairmont Mingo, in respect of the elections results for Electoral District number four (4) and continues to corroborate the accuracy of the Statements of Poll, made public by the People’s Progressive Party/Civic (PPP/C), the desperation of APNU/AFC proportionately increases. After publicly acknowledging that Election Day’s activities were fairly and credibly conducted, and declaring themselves, immediately thereafter, to be the winners thereof, including stating as much in a dossier, which they have submitted to the Government of the United States of America (USA), they are now back-pedalling.

Not only in self-contradiction but in defiance of public statements made by every international and local accredited observer team certifying Election Day’s activities to be free, fair and transparent, APNU/AFC are now hustling to hastily construct an incredulous narrative seeking to undermine Election Day’s activities.

In this regard, they are concocting and manufacturing myriads of bizarre allegations of irregularities and malpractices, contending that they occurred on Election Day, thereby not only impugning the integrity and competence of their own polling agents, who were present at every Polling Station throughout the country, but also implicating nearly 20,000 Election Day staff of GECOM, in a conspiracy to perpetrate massive electoral fraud on March 2, 2020. How this gigantic, elaborate illegal design was executed without the detection of themselves, the observers, their supporters, the press and indeed, the entire citizenry, remains one of the most confounded phenomena of this century.

Now, they desire GECOM to undertake the macabre task of investigating these self-serving fictions. In a letter to the press, Basil Williams wrote “that it is for the Guyana’s Elections Commission to resolve the irregularities, discrepancies and anomalies contained in the observations reports…GECOM is empowered to examine irregularities, discrepancies and anomalies in order to make a determination of the credibility or lack thereof of the recount process”. Unsurprisingly, Williams failed to cite any legislation or legal principle to support his fallacious contention. There is none.

In any event, let us briefly examine the position of the APNU/AFC. At the recount, they are randomly calling out serial numbers of persons appearing on the list of electors, alleging that those persons migrated or are dead, without, not only providing a shred of evidence that those persons are dead or have migrated, but also not establishing that those persons actually cast a ballot; that the absence of a poll book or entry of a vote in a poll book, either render all the votes in that ballot box fraudulent or that particular vote invalid. When quizzed by the press on how these serial numbers are arrived at, Ganesh Mahipaul admitted that they are received from hearsay information.

Aubrey Norton, in his interaction with the press, appeared convinced that any irregularity, which occurs in a Polling Station, translates into the invalidation of all votes cast at that station. When asked to produce evidence to support his wild and multiple allegations, he boldly said that his “evidence is the allegation”, and once made to GECOM, it is GECOM’s duty to probe it in order to determine whether it is true or false. One objection proffered was that a voter was a member of the Jehovah Witness disciple and, therefore, is religiously prohibited from voting! The law aside, any rational mind examining this narrative of APNU/AFC will, ineluctably, conclude that it is a compendium of rubbish.

Leading APNU/AFC officials have publicly stated that the 2020 elections are tainted with fraud and have laid such allegations at the door of the PPP/C. In fact, Joseph Harmon has accused GECOM of electoral fraud. The determination of the existence of fraud and the imposition of legal consequences, therefore, are matters, indisputably, within the remit of the Judiciary, under the doctrine of separation of powers. Special rules of court attend an allegation of fraud, more notably, that fraud must be particularly pleaded and specifically proved. Should GECOM embark on an enquiry into APNU/AFC’s baseless allegations of fraud, it would be trespassing on the preserve of the Judiciary, as it is common ground that GECOM is not clothed with any judicial function or responsibility by the Constitution.

The Privy Council decision, in the Jamaican case of Hinds v R 24 WIR 326 (PC), makes my aforesaid contention unassailable. Very briefly, this case related to the establishment of a gun court by the Gun Court Act of Jamaica. The court comprised of persons who did not meet the threshold requirements for judicial appointments.

Additionally, the court was authorised to impose terms of imprisonment for certain gun-related offences which only the High Court was jurisdictionally competent to impose. Certain sentences imposed by the court were reviewable by a specially appointed panel, again, who were not qualified to be Judges. The Privy Council ruled that the creation of the Review Panel was an attempt by the Executive to exercise the duties of the Judiciary and was unconstitutional.

The Canadian legal academician Peter Hogg notes in his book, Constitutional Law of Canada, that, “provincial legislators may not confer on a body, other than a superior district or county court, judicial functions analogous to those performed by a superior, district or county court.”

What Basil Williams actually advocates, is for GECOM to arrogate to itself judicial functions analogous to those performed by the Judiciary. Any such act by GECOM, I vehemently contend, will be in violation of the Constitution.

However, the issue in Williams’ erroneous view goes beyond a violation of the separation of powers doctrine and invites GECOM to compound its violation of the Constitution. It is to be noted that GECOM’s gazetted Order relating to the recount process declares itself to have been made, inter alia, pursuant to Article 162 of the Constitution. Article 162 itself declares that the functions of the Elections Commission are “subject to the provisions of the Constitution…”.

Article 163 (1) (b) of the Constitution provides:

Art 163: “Subject to the provisions of this Article, the High Court shall have exclusive jurisdiction to determine any question –

(b)(1) which either generally or in any particular place, an election has been unlawfully conducted or the result thereof has been or may have been, affected by any unlawful act or omission”.

Viewed from whatever angle, the rantings of the political misfits and miscreants, notwithstanding, the matters which the High Court has been constitutionally authorised, exclusively, to determine are undoubtedly the nature and type of matters, which are the subject of APNU/AFC’s allegations. Again, I forcefully submit that if GECOM was to yield to the cunning of the APNU/AFC fanatics and venture in that direction, it would be trespassing on the exclusive jurisdiction of the High Court and would be violating the doctrine of separation of powers as well as expressed provisions of the Constitution.

While the Constitution creates this exclusive jurisdiction in the High Court, the law provides that an Election Petition is the vehicle by which the High Court is approached to determine such questions. However, such a position can only be presented to the court after the final declaration of the elections results have been publicly made by GECOM. This is the well-established procedure in such elections-related challenges.

In the local case of Petrie and others v the Attorney General and others (1968) 14 WIR 292, there was a challenge to the holding of national elections on the grounds, inter alia, that the laws relating to the compilation of the list of electors and the registration of electors were all ultra vires, illegal and unconstitutional. At the hearing before Chief Justice Bollers, a submission by the Attorney General that the court was without jurisdiction to entertain the application since the question which it raises belongs to a class of questions which are placed by the Constitution exclusively within the jurisdiction of the High Court exercising a special jurisdiction and as such are justiciable only after the election has been held, was upheld.

Chief Justice Bollers, noting that the electoral process begun with the issue of the Proclamation by the Governor General regarding the holding of elections, observed that “if any irregularities or illegalities are committed from this period of time in relation to the various matters involved in the election…. then these irregularities may form the basis of an election petition, after the result of the election has been made known”.

Basil Williams has referred to the experience of the Chairperson of GECOM, as a Judge of many years, which experience he panders, equips her with the expertise to enquire into and pronounce upon the baseless and false allegations of APNU/AFC. Justice Claudette Singh has considerable juristic skill and experience.

She has been an able and learned Judge and I say confidently that employing her juristic skill, learning and experience, Justice Singh would know and recognise that GECOM has no curial role in hearing or determining the allegations of missing poll books, dead persons voting and migrated persons voting and would know that such allegations must be presented to the High Court by way of an Election Petition after the final results of the elections have been publicly declared by GECOM.

All is not lost for APNU/AFC. As the clearly predicted losers of these elections, if they wish to continue their dark humour of their Tales from the Crypt, then they are certainly entitled to do so by way of an Election Petition. This would be the right way.

Until that time, I remain supremely confident in the words of Justice Claudette Singh, who is on record in a public declaration, saying: “I know only one way, that is, the right way”.