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Vote recount order collides with election law- Caribbean Court judge, ANUG lawyer

Last Updated on Thursday, 2 July 2020, 18:38 by Denis Chabrol

Justice Jacob Wit

A Caribbean Court of Justice (CCJ) judge and a lawyer representing A New and United Guyana (ANUG) political party say the gazetted national vote order conflicts with one of key election laws.

The CCJ will next Wednesday decide whether it has jurisdiction to hear an appeal by the People’s Progressive Party (PPP). That appeal is against  a decision by the Guyana Court of Appeal that the reference to more votes in Guyana’s constitution votes means more valid votes and should be read along with the recount order, number 60 that deals with the reconciliation of ballots with voters’ lists, counterfoils and stubs.

But already Justice Jacob Wit has frowned on the decision by the Guyana Court of Appeal, saying it changes the meaning of the word “valid” in the Representation of the People Act and the Constitution.

He says that forms the basis for the Chief Elections Officer to arrive at different figures for the outcome of the general and regional elections.

“Now if you give a different meaning to the word “valid” in the constitution in Article 177(2), then you would change the Representation of the People Act in the same swoop because, as I understand the Chief Elections Officer changed, came up with a very different tabulation  which is not in accordance with the Representation of the People Act,” said Justice  Wit.

Justice Wit cautions against the Guyana Court of Appeal decision. “So, once you change the meaning of a word , then I think we all agree that it should be valid votes but once you change that meaning then it has repercussions on other legislation and it would seem to me that that would not be within the jurisdiction of the Court of Appeal and it will be very dangerous if that could  be done in this way; seems to me,” he said.

Senior Counsel, Ralph Ramkarran, who is representing ANUG, says the Recount Order cannot go against any law such as the Representation of the People Act. He has told the panel of CCJ judges that valid votes can only mean what it says in the Representation of the People Act not in the order of recount which A Partnership for National Unity+Alliance For Change (APNU+AFC) supporter Eslyn David is relying on.

Ramkarran disagreed with David that the “quality of the vote” must be in keeping with the Recount Order which refers to “final and credible” and “final credible” vote. “Your Honour, but the Order of Recount is subsidiary legislation  and in our Interpretation and General Clauses Act, it provides that no subsidiary legislation shall be inconsistent with the provisions of any Act.

Ramkarran says more valid votes can only mean what the Representation of the People Act states. “Final and credible cannot be interpreted to mean anything else than valid. Final and credible cannot add an additional layer of credibility on the meaning of “valid” that Ms. David seeks that we apply. At the end of the day, the interpretation of the Court of Appeal of more votes meaning more valid votes can only mean valid votes in terms of the Representation of the People Act,” he said.

Justice Wit asked whether the Chief Elections Officer, Keith Lowenfield interpreted the decision of the Guyana Court of Appeal or his decision “fantasy.” Lowenfield, based on the advice of the local Court of Appeal’s decision, has already provided a tabulated report of the results based on his subtraction of 115,000 votes from the 460,352 votes that had been recounted. Based on his calculation, APNU+AFC won the election by one seat. However, if all of the votes are used,   the People’s Progressive Party (PPP) can be declared the winner by 15,000 votes ahead of APNU+AFC.

Ramkarran urged the CCJ to order that Lowenfield’s letter is “null and void” and state what are the “valid results” of the elections are to end the now four-month long battle over what should be the official declaration. “Unless this court takes the position on what the valid results iof the elections are; if this court seeks to kick the election can down the road, and not go down that road itself , we will be here very shortly…for this court to once again to pronounce on the elections in Guyana,” he said.

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July 2020