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Guyana Court of Appeal cannot legally hear APNU+AFC supporter elections case -GECOM Chairperson

The Chairperson of the Guyana Elections Commission (GECOM), Retired Justice Claudette Singh wants the local Court of Appeal to dismiss a case brought by a supporter of A Partnership for National Unity+Alliance For Change asking that the election management body use only credible votes to declare results of votes cast more than three months ago.

In court papers seen by News-Talk Radio Guyana 103.1 FM/Demerara Waves Online News, Singh said the Court of Appeal could not hear the application by Eslyn David because it is only the High Court that could hear questions in the interpretation of the constitution.

Through her Attorney-at-Law, Kim Kyte, the GECOM Chairperson said an application seeking a declaration that GECOM failed to act in accordance with its order, and secondly, an interpretation of the words “more votes are cast” and the affidavit filed in support do not touch and concern the qualification of a person elected President are “misconceived and ought to be struck out forthwith.”

Singh said Article 177 contemplates a person already declared by GECOM as President. “It is respectfully submitted that the electoral process has not reached this stage,” she said. The former judge said a Notice of Motion could not be determined by the Court of Appeal but must be pursued by an elections petition.

On the specific issue of the credibility of an election, she argued that it is only the High Court that can determine the validity of an election and “GECOM could not have thereby clothe itself with jurisdiction to establish itself as a Court of Law to determine credibility of an election when Article 163 (1) stipulates that the High Court shall have exclusive jurisdiction to determine the legality of an election.”

She further argued that the Commission cannot arrogate onto itself a jurisdiction to determine the credibility an election or any unlawful act since no specific power was conferred on it under Article 162 (1) (b) to do so.

Lawyers for the applicant, Eslyn David, who appears to be acting for A Partnership for National Unity, contend in their court papers that the Recount Order amended the Constitution to give GECOM the power to determine the credibility of an election. “In such circumstances, it would be correct to say that the Order established and expressed a new standard for the determination of the March 2, 2020 General and Regional Elections,” David’s lawyers state. They added that, “it is therefore submitted that though the Order expressly refers to Section 96 of the Representation of People Act, it implicitly had a direct effect on Article 177(2) (b) of the Constitution as it required the Election of the President to be similarly based on the declaration of the credibility of the Elections.”

The GECOM Chairperson said the Recount Order could not be used as the basis for taking away the exclusive jurisdiction of the High Court and hand that to GECOM. “Having established that Parliament gave the exclusive jurisdiction to the High Court to determine lawfulness and validity of an election, no subsidiary legislation can modify this,” she said.

Singh, through her Attorney-at-Law, noted that Article 8 of the Constitution provides that the Constitution is the Supreme Law of Guyana and any other law inconsistent with it is void to the extent of its inconsistency.

In that regard, she said legal action about validity, credibility or legality of the elections could not be done before a declaration of the results. “Further it is respectfully submitted that such a challenge cannot be entertained at this time on the basis that it is premature. Any challenge to the validity of an election and any dispute or claim of any irregularities or illegalities in relation to an election can only lawfully form the basis of an election petition after the result of the election has been made known,” she said.

The GECOM Chairperson questioned the basis upon which GECOM is to embark on a credibility exercise to determine the issues of validity and if there should be letters from one political party or the opinion of the Chief Elections Officer “without giving interested parties an opportunity to be heard.”

Singh posited that if GECOM to hold court and take evidence then David is asking GECOM to embark on a trial.

She said the court could not act in vain because the court cannot direct GECOM on what to decide or order fresh elections. “The short answer is ‘no’ since this is not an election court,” she said.

“The forum of the elections court is the appropriate place to assess the evidence to determine if it has crossed the threshold of sufficiency to vitiate the 2020 Election. It is respectfully submitted that GECOM does not have that jurisdiction.

David’s lawyers state that GECOM cannot abdicate its responsibility by the Chief Elections Officer not lawfully advising the Chairperson about a presidential candidate if the Elections Commission “abdicates its responsibility to determine credibility.”