OPINION: Lowenfield must comply with directions of GECOM Chair

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The following is an opinion piece by Attorney-at-law Anil Nandlall 

The Rigging Cabal, even at this late stage, is refusing to concede that they have lost the 2020 General and Regional Elections. They continue to hatch one specious argument after another, in their futile efforts to hold out the illusion of hope to a misguided segment of the population.

Last night, I responded to Joe Harmon. Today, they have constructed a new narrative. The Chairperson has made it, excruciatingly clear that GECOM has no jurisdiction to determine the credibility of, or to arrogate unto itself the jurisdiction to annul, an election. The Commission has already directed the Chief Election Officer to prepare and submit a Report “using the results of the recount, for consideration by the Commission”, pursuant to Article 177 (2) (b) of the Constitution and Section 96 of the Representation of the People Act.

The new argument is that section 96 of the Representation of the People Act confers upon the Chief Election Officer, a power to ascertain the validity of votes and that he can only calculate votes that he determines to be valid. Section 96 provides:

S96. (1): “The Chief Election Officer shall, after calculating the total number of valid votes of electors which have been cast for each list of candidates, on the basis of the votes counted and the information furnished by returning officers under section 84(11), ascertain the result of the election in accordance with sections 97 and 98.

(2).​The Chief Election 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 election results under section 99.”

It is common knowledge that the Chief Election Officer has already submitted to the Commission, the total valid votes cast for each List of Candidates for the General and Regional Elections, as generated by the National Recount exercise. I am attaching two documents submitted by the Chief Election Officer containing these tabulations. It will be noted that each of these documents bears a caption “total valid votes cast”. Therefore, the Chief Election Officer has already complied with that part of section 96(1) of the Representation of People Act; and what he is now directed to do by the Commission is to comply with the latter part of the section, that is to say, “ascertain the result of the election in accordance with sections 97 and 98” and then prepare the Report referred to in section 96 (2)”.

There is a notion being peddled that the Chief Election Officer can function independently of, or can countermand a direction of the Commission. It is, perhaps, this mistaken belief which may have produced the further misconception that the Chief Election Officer has a power to determine the validity of votes. I will now debunk these fallacies one after the other.

The Chief Election Officer is at all material times subservient to the Commission and can only act in accordance with the direction and remains under the control of the Commission. Section 18 of the Election Laws (Amendment) Act puts this issue to rest. Section 18 provides:

S18: “The Chief Election Officer and the Commissioner of Registration shall notwithstanding anything written in any law be subject to the direction and control of the Commission.”

In terms of the validity of a vote, the Commission at the commencement and throughout the Recount process, embraced the true legal settled position, which is: that a vote is valid, once ex facie, the ballot paper is authentic, it is authorized by bearing the 6 digit stamp of the Presiding Officer or any part thereof and it has a mark of the voter which proximately relates to the symbol of a political party; that anyone who alleges that such a vote is invalid, must so prove to the satisfaction of the High Court in an elections petition filed pursuant to Article 163 of the Constitution.

Yesterday, the Chairperson in effect again embraced these principles at a meeting of the Commission.

In the circumstances, the Chief Election Officer, being subject to the Commission, can neither defy, nor act outside of the four corners of these principles. In short, his function remains quite mechanical, which is, to use the total of valid votes already calculated and submitted to the Commission (see the 2 attachments hereto) and comply with the remainder of section 96. He has no legal latitude to do anything else.