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GECOM asks High Court to throw out election petition

Last Updated on Wednesday, 7 April 2021, 15:16 by Denis Chabrol

The Guyana Elections Commission (GECOM) on Wednesday told an opposition-associated High Court election petition hearing that that elections management authority did nothing wrong by formulating a recount order because difficulties had plagued the March 2, 2020 general and regional election process.

“Even if your Ladyship may find a breach, then there were no consequences which effected the conduct or result of the count and, therefore, in any event, Your Ladyship should dismiss the petition,”   GECOM’s Attorney-at-Law, Anthony Astaphan told an election petition hearing presided over by Chief Justice Roxane George-Wiltshire.

The Chief Justice’s has set herself April 26 at 11 AM for handing down of her decision in the election petition of Claudette Thorne and another vs Keith Lowenfield.

The Commission lawyer’s position appears to be in direct contrast to the position by the Chief Elections Officer, Keith Lowenfield and the three now pro-opposition A Partnership for National Unity+Alliance For Change (APNU+AFC) election commissioners that the declarations by the Returning Officers ought to have been used to declare the results of the March 2, 2020 general and regional elections. In one instance after the recount, Mr. Lowenfield had sought to nullify thousands of votes to arrive at credible votes cast, saying that the recount process had shown glaring discrepancies of voter impersonation, irreconcilable votes because of missing documents and other irregularities.

Mr. Astaphan told the Court that there was no pleading in the case to suggest a total non-compliance with the provisions of the Representation of the People Act that provides for a recount, to remove difficulties that were being experienced by GECOM and Guyana and to have a credible recount to declare results for the President and the Parliament.  “Our primary submission is that there is no breach…We stand by our written submissions, fully and absolutely that there was no breach,” he said. The Dominican-born Senior Counsel further contended that Section 22 is constitutional linked to Article 162 of Guyana’s constitution and Order Number 60 is entirely consistent with Section 22 and Article 162.

He queried what GECOM should have done in the face of “intransigence” by the Returning Officer and the Chief Elections Officer and “the difficulty to get cooperation for the resolution of the matter” to declare a result and chaos. Mr. Astaphan said even the High Court finds that there was a breach, the petition should be dismissed

The GECOM lawyer said the petitioner did not establish that there was a breach that affected the election. “There must be material particulars and facts that indicate precisely how that would have been done,” he said.

Trinidad and Tobago Senior Counsel, Douglas Mendes- for the governing People’s Progressive Party Civic’s Representative of the List of Candidate, Bharrat Jagdeo-argued that if the High Court finds that Section 22 is constitutional, then a major part of the petitioner’s case will fall.

Concerning the formulation of Recount Order Number 60, he said the National Assembly was constitutionally empowered to enact Section 22 which vests powers in the seven-member GECOM based on sufficient policies and guidelines. Mr. Mendes said Order 60 does not purport to amend or modify the Representation of the People Act but instead authorise a departure of the strict provisions of that law. He noted that a number of requests for recounts had been rejected and others had been held in abeyance. “We say that there are sufficient guidelines and controls operating under Section 22,” he said.

The lawyer said it was “understandable” that the recount had not been done by the Returning Officers because of difficulties that had arisen by a “particular” Returning Officer. He reasoned that Order 60 had required that votes be counted rather than be rejected except for provisions under the Representation of the People Act that states that ballots can be rejected if they do not have the official mark, unclear who voters are voting for or if someone votes for more than one list of candidates. Mr. Mendes asked the Chief Justice to find that the recount was done with the consent of all of the political actors and there was no complaint of disenfranchisement.

Attorney General, Senior Counsel Anil Nandlall that among the commission, there is “competition” though it is an independent, constitutional and autonomous body that unanimously produced Order 60. Further, he said there was no evidence that results from the recount differed to show that there was irregularity or illegality. “What is being alleged is almost academic when compared with the process itself,” he added.

He said GECOM could legally set aside the Returning Officers’ declarations because they constituted a difficulty.

Trinidad and Tobago Senior Counsel, John Jeremie- representing the petitioner- said Order 60 is ultra vires Article 163 of Guyana’s constitution because the settlement of election disputes have to be settled by an election petition. He added that if GECOM could not make laws, that “is constitutionally bad”

Mr. Jeremie said there was no “grey area” but instead “swept aside all , not one, all of the declarations made” and proceeded to a recount. “That cannot be a rectification of errors,” he said.