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High Court case filed to compel GECOM to use 10 declarations, not recount data

A case has been filed in the High Court to block the Guyana Elections Commission (GECOM) from using the recounted, valid and certified results to declare the results of the March 2, 2020 general and regional elections, and instead compel the seven-member body to use the 10 district declarations.

“I have been advised by my Attorney-at-Law and truly believe that the count of votes and information transmitted by the ten (10) Returning Officers of the Electoral Districts are still valid and subsisting, and though held in abeyance in the purported National Recount, were never invalidated or set aside by any Court of competent jurisdiction,” the applicant, Misenga Jones said in court papers filed on her behalf by Attorney-at-Law, Misenga Jones.

Although the case has been filed, the Chief Justice Roxane George-Wiltshire has not assigned the case to a judge. She has heard almost all election and political-related cases over the past several months.

In court papers seen by News-Talk Radio Guyana 103.1 FM/ Demerara Waves Online News, the applicant names the respondents as GECOM, its Chairman Retired Justice Claudette Singh and and the Attorney General, Basil Williams.

The case came on Tuesday, one day after the GECOM Chairman set aside the 10 declarations and again ordered the Chief Elections Officer, Keith Lowenfield to use the recount data to compile his report for the declaration of results for the March 2, 2020 general and regional elections.

She wants the court to hand down its decision to swiftly pave the way for the swearing in of the President. “I have been advised by my Attorney-at-Law and truly believe that there is no lawful impediment to the Chairman making a Declaration of the candidate deemed to be President and as such, the Court should declare that such a Declaration should be promptly made having regard to the fact that elections took place more than four (4) months ago and results have not yet been declared,” she said.

Ms. Jones echoed a concern already raised by pro-A Partnership for National Unity+Alliance For Change (APNU+AFC) elections commissioner, Vincent Alexander who earlier this week contended that the recount had removed or included ballots.

“That at the time of count at the place of poll Presiding Officers invalidated votes for want of Official Mark, that is to say the six digit stamp not being visible, ballots with names and or initials, ballot papers marked by Electors with more than one marking, torn ballot papers, but at the recount the Elections Commission validated some of those votes,” said Jones, a community organiser.

Like Alexander, Jones also stated in her court affidavit that, “that the determination of what constituted a valid vote was not only at variance with the Representation of the People Act, but was constantly changing and was never uniformly and consistently applied by the Elections Commission during the Recount process.”

Ms. Jones is also objecting to the GECOM Chairman directing the Chief Elections Officer what to include in his results report, saying that to do so would trample on his independence to advise the commission.

Following are the declarations that Ms. Jones is asking the court to make.

The Applicant makes application for:
(i) A Declaration that this Court has jurisdiction to hear this Application on the basis of prima facie evidence that there has been noncompliance by the Guyana Elections Commission and the Chairman of the Guyana Elections Commission in that they have not complied with the constitutionally stated process as outlined in Article 177(2)(b) of the Constitution with regard to the March 2, 2020 General and Regional Elections.

(ii) A Declaration that the Chair of the Guyana Elections Commission (GECOM) has failed to act in accordance with the advice of the Chief Election Officer as mandated by Article 177(2)(b) of the Constitution of Guyana in that she has failed to declare the Presidential candidate deemed to be elected as President in accordance with the advice tended in the report by the Chief Elections Officer dated the 11th day of July 2020.

(iii) A Declaration that the Respondents and in particular the Guyana Elections Commission (GECOM) have no authority to declare any person as President except in accordance with the advice of the Chief Election Officer tended in his report pursuant to Section 96(1) of the Representation Act.

(iv) A Declaration that the Respondents and in particular the Guyana Elections Commission (GECOM) have no authority to declare any person as President except in accordance with the advice of the Chief Election Officer tended in his report pursuant to Article 177(2)(b) of the Constitution of Guyana.

(v) A Declaration that the report required by the Chief Election Officer under Section 96 of the Representation of the People Act must be based on the votes counted and information furnished by the ten (10) Returning
Officers from their respective ten (10) Electoral Districts which were submitted to the Chief Election Officer on the 13th day of March, 2020.

(vi) A Declaration that the Chief Election Officer is not entitled to base his report required by Section 96 of the Representation of the People Act on data generated from the recount purported to be carried out under Order No. 60 of 2020.

(vii) A Declaration that the votes counted at the National Recount pursuant to Order No. 60 of 2020 as amended, are invalid for failure to conform with the concept of valid votes described by the CCJ in its Judgement in the Appeal of Ali and Jagdeo v David, et al [2020] 10 (AJ) GY.

(viii) A Declaration that data generated from the recount purportedly conducted under Order No. 60 of 2020 is generated by an unconstitutional process in that the Order requires decisions on validity of ballots that by Article 163(1)(b) are the exclusive province of the High Court.

(ix) A Declaration that the votes counted and information furnished by the Returning Officers of the ten (10) Electoral Districts on March 13, 2020 contain the votes that are ex facie valid in that they were tabulated in the presence of, inter alia, the duly appointed candidates and counting agents of contesting parties and, as such, are properly the valid votes contemplated by Section 96(1) of the Representation of the People Act.

(x) A Declaration that the Chief Election Officer is not subject to the direction of either the Chairman or GECOM in the content of the advice he is required to furnish under Article 177(2)(b) of the Constitution of Guyana.

(xi) A Declaration that any instruction from the Chairman of GECOM purporting to direct the Chief Election Officer as to the content of the report he furnishes under Section 96(1) of the Representation of the People Act, is unlawful, void, and of no effect.

(xii) A Declaration that letters from the Chairman of GECOM on June 13th, July 9th, and July 10th 2020 purporting to direct the Chief Election Officer as to the content of his advice and report under Article 177(2)(b) and Section 96(1) of the Representation of the People Act respectively, are unlawful, constitutional, void, and of no effect.

(xiii) A Declaration that in particular the letter of July 9th 2020 citing Section 18 of the Election Laws (Amendment) Act No 15 of 2000 as authority that the Chief Election Officer was subject to the supervision and control of GECOM is misguided, invalid, and has no application to the Chief Election Officer in the performance of his duties under Article 177(2)(b) of the Constitution and Section 96(1) of the Representation of the People Act.

(xiv) A Declaration that any challenge to the advice of the Chief Election Officer furnished in his report to GECOM on July 11th, 2020 can be challenged only in accordance with the provisions of Article 163 of the Constitution of Guyana, in an Election Petition Court.

(xv) A Declaration that the Commission does not have the constitutional authority to alter the advice contained in the report submitted by the Chief Election Officer in accordance with Article 177(2)(b) of the Constitution of Guyana and Section 96(1) of the Representation of the People Act.

(xvi) A Declaration that GECOM is obligated to accept the advice of the Chief Election Officer tendered in his report submitted on June 11th 2020.

(xvii) A Declaration that neither the Chairman nor the Commission is entitled to alter the votes counted and information forwarded by the ten (10) Returning Officers to the Chief Election Officer in accordance with Section 84 of the Representation of the People Act.

(xviii) A Declaration that Section 22 of the Election Laws (Amendment) Act No. 15 of 2000 is unconstitutional in that it violates the separation of powers and impermissibly usurps the legislative powers of Parliament

(xix) A Declaration that the Declarations made by the Returning Officers of the ten Electoral Districts of the votes cast by the Electors in the Electoral Districts and or Electoral Returns are final and cannot be set aside, varied and or altered by the Respondents.

(xx) A Declaration that the Declarations of the respective Returning Officers for each Polling District after compliance with section 84 of the Representation of the People Act, of the votes cast by Electors in favour of the Lists of Candidates in Electoral Districts 1 to 10 are the Final Declarations of the votes cast by the Electors in favour of a List of Candidates in Electoral Districts 1 to 10.

(xxi) A Declaration that the Declarations of the respective Returning Officers of Electoral Districts 1 to 10 of votes cast by Electors in favour of the Lists of Candidates in the respective Districts at the General and Regional Elections held on March 2, 2020 made on or before the 14th day of March, 2020, are the sole legal basis for the Chief Elections Officer’s Report to the Chairman of the Guyana Elections Commission and the Guyana Elections Commission pursuant to section 99 of the Representation of the People Act and the Chief Elections Officer’s advice tendered under Article 177 of the Constitution of Guyana

(xxii) An Order restraining the Guyana Elections Commission from acting in any manner not consistent with the mandate set out in Article 177(2)(b) and Section 96 of the Representation of the People Act with respect to the advice and report of the Chief Election Officer tendered on July 11th 2020.

(xxiii) An Order restraining the Chief Election Officer from acting in any manner inconsistent with the mandate contained in Article 177(2)(b) of the Constitution of Guyana and Section 96 of the Representation of the People Act in the performance of his duty to submit a report containing his advice to the Guyana Elections Commission.

(xxiv) An Order restraining the Second Respondent whether by herself, her servants or agents, from acting in any manner inconsistent with the provisions of Article 177(2)(b) of the Constitution of Guyana as it relates to declaring a person deemed to be President.

(xxv) An Order restraining from taking the oath of office as President of Guyana any person identified as the Presidential candidate in the list of parties contesting the elections, other than the Presidential candidate in the list which the Chief Election Officer advised in his report to GECOM on July 11, 2020 to be the list in favor of which more votes were cast.

(xxvi) An Order setting aside the decision of the Commission not to accept the advice of the Chief Elections Officer as contained in his report dated July 10th 2020, furnished in accordance with Article 177(2)(b) of the Constitution of Guyana and Section 96(1) of the Representation of the People Act.

(xxvii) An Order setting aside the decision of the Commission purporting to invalidate the votes counted and information furnished by the ten (10) Returning Officers to the Chief Election Officer in accordance with Section 84 of the Representation of the People Act.

(xxviii)Such further or other Orders as this Honorable Court may deem just.