DPP opposes Chief Elections Officer becoming party to case on Statements of Poll, Statements of Recount

Last Updated on Monday, 24 May 2021, 15:05 by Denis Chabrol

The Director of Public Prosecutions (DPP) on Monday opposed the Chief Elections Officer Keith Lowenfield being a party to a High Court case for “true” copies of the Statements of Poll and Statements of Recount to be handed over to police and the DPP as part of a probe into alleged electoral fraud.

Mr. Lowenfield, who is one of several persons charged with fraud related to the March 2, 2020 general and regional elections, has applied to the High Court to become a party to the case.

During the hearing of election petitions by A Partnership for National Unity+Alliance For Change (APNU+AFC) , the Chief Justice Roxane George-Wiltshire had ordered that the Statements of Poll and Statements of Recount be held in the custody of the Supreme Court Registrar should there be an appeal or order by another Court.

But Attorney-at-Law Dharshan Ramdhanie- for the DPP- said Mr. Lowenfield has no right under the Representation of the People Act and the National Assembly Validity of Elections Act because the request for the documents was not being made in an election jurisdiction. “The legal custody concept, which clothes Mr. Lowenfield in relation to election documents, again, they are narrowly, they ought be strictly and narrowly confined to the election process and for the purposes related to an election petition and so none of these provisions, I dare submit, gives Mr. Lowenfield any interest that is contemplated,” he said.

Mr. Ramdhanie said if those documents had been in the custody the Chief Elections Officer, a search warrant could have been sought and they seized.

Mr. Ramdhanie said the Statements are public documents and there were no issues of confidentiality, secrecy or privilege.

Mr. Lowenfield, through his Attorney-at-Law Nigel Hughes, told the court that he was not claiming any right as a defendant in the criminal proceedings or as a civilian but in his capacity as Chief Elections Officer.

Mr. Hughes said the Chief Elections Officer submitted his report to the seven-member Elections Commission  which became the basis for the declaration of results.

The Chief Justice asked what prevents the Chief Elections Officer from handing over or producing documents as requested by police. In his response, Mr. Hughes said if police wanted copies or to examine the documents under the Representation of the People Act, and so he does not have any jurisdiction to give any other person the documents. “He would have to seek the protection of a court if he was to facilitate anybody else having access to them,” he said.

On the issue of whether the Chief Elections Officer has a right to be heard before the search warrant is issued, Mr. Hughes said once the magistrate is satisfied then it can be done.

He disagreed that this is not a similar situation but the Chief Justice said that was so because they were in the legal custody of the Court. On that point, Mr. Hughes said the Chief Elections Officer is absolved because the court has possession of the Statements of Poll and Statements of Recount and so it would be for the court to decide.

He said the authority of the Chief Elections Officer is absolved of any responsibility for the custody of those documents because the Court has “exclusive custody” based on her previous order.

But Mr. Ramdhanie, on the other hand, urged the High Court to consider that the Chief Elections Officer still has custody of the Statements and that was merely holding them for “safekeeping.”

The Chief Justice would on May 27 at 9:15 am rule on whether the Chief Elections Officer should be accepted as a party to the proceedings.