Court of Appeal upholds High Court decision on use of recount votes

Last Updated on Thursday, 30 July 2020, 15:04 by Denis Chabrol

By Samuel Sukhnandan

The Court of Appeal on Thursday by a unanimous decision upheld an earlier ruling that votes from the national recount of ballots must be used to declare the results of the March, 2020 general and regional elections in Guyana.

It dismissed the appeal filed by A Partnership for National Unity+Alliance For Change (APNU+AFC) agent Ms. Misengna Jones who in her earlier application sought to compel the Guyana Elections Commission (GECOM) to utilise the 10 declarations by the Returning Officers as the basis for announcing the winner of the March 2020 elections.

The matter was presided over by Justices of Appeal Dawn Gregory and Rishi Persaud, and High Court Justice Priya Sewnarine-Beharry.

In handing down her decision, Justice Gregory said there is no basis of questioning the constitutionality of the recount order, stating that the Caribbean Court of Justice (CCJ) was correct in its ruling when it dealt with the recount order and that it cannot be challenged unless by way of an elections petition.

Justice Gregory-Barnes agrees that the function of the Chief Elections Officer is mainly to present the election results, stating that “there should be no difficulty for the tabulation to be prepared as requested by the commission,” especially since the recount was done in one place.

She also agreed that the High Court has supervisory powers to ensure the election process is protected and that GECOM and its functionaries operate lawfully.

Initial Reaction of Mr. Joseph Harmon – Campaign Manager of the APNU+AFC.

While I did not expect much out of the Court of Appeal as constituted I am still disappointed that the Court did not use this opportunity at this juncture in the history of Guyana to make a judgment which was sound in law.

Meanwhile, APNU Chairman Joseph Harmon expressed disappointment in the ruling but hoped that GECOM would use valid votes in declaring the results.

“The Guyanese people will certainly examine in a more meticulous way the manner in which their justice system functions. The APNU+AFC Coalition is committed to the rule of law and respect for decisions of our Court. We iterate that when the matter goes to GECOM that only valid votes will be counted in the final declaration made by the Chairman of GECOM. Fraudulent votes cannot be the basis for a final declaration to be made. This is our firm position,” Mr. Harmon said.

Meanwhile, Justice Persaud also ruled that the Chief Elections Officer Keith Lowenfield is “duty-bound” to prepare his final elections report using the recount results as directed by the GECOM Chair Retired Justice Claudette Singh. He added, “The CEO is an employee of the Commision, unless and until an election court states otherwise.”

On the other hand, Justice Sewnarine-Beharry, in her judgement, said GECOM was lawfully empowered to undertake the recount and that it was “disingenuous” for the Chief Elections Officer to want to prepare a report based on declarations made before the recount.

Justice Sewnarine-Beharry ruled that GECOM was correct to set aside the declarations before the recount and it could only be challenged through an elections petition as well.

An application for the applicants led by Attorney Roysdale Forde for a three-day stay of the court ruling was initially denied. But further deliberation led to the judges granting a one-day stay.
This did not sit well with attorneys for the respondents including Timothy Jonas, Anil Nandlall and Sanjeev Datadin all arguing that no orders were granted by the Court and so there is nothing to stay.

Attorney for the GECOM Chair, Kim Kyte-Thomas also argued strongly against it saying GECOM must be allowed to complete its work.