The Court of Appeal yesterday handed down a ruling which effectively clears the way for the Guyana Elections Commission (GECOM) to proceed with the nationwide recount of votes cast at the March 2, 2020 Regional and General Elections.
In her ruling yesterday, President of the Appeal Court Justice Dawn Gregory made it clear that “The Guyana Court of Appeal on Sunday ruled that GECOM cannot farm out its responsibilities such as the management and supervision of general elections to anyone else.”
The appeals had stemmed from a decision by President David Granger to ask CARICOM to supervise the counting of ballots for Region Four, after the tabulating process was halted several times amid accusations of fraud and interference.
Both the Coalition and Opposition parties have been accusing each other of interfering with the process with today making it five weeks since the elections.
The delays have been characterised by one court case after the next.
Justice Gregory, in the emergency ruling yesterday at the Appeals Court, Kingston, said GECOM’s decision to act on an agreement by President David Granger and Opposition Leader, Bharrat Jagdeo for the Caribbean Community (CARICOM) to supervise the recount was illegal. “Any agreement in which supervision is removed from GECOM will be unlawful,” she said. The court relied on a GECOM press statement that spoke of the team’s intention to “supervise” the counting process.
The decision of the Appeal Court deemed the recount by GECOM in itself lawful. As such, the injunctions granted by High Court Judge, Franklyn Holder, barring GECOM from carrying such functions remains overturned.
The Court therefore decided against sending the case back to the High Court.
Based on requests made by attorneys involved in the case, the Court is expected to issue consequential orders on the way forward by 1:30 p.m. this afternoon.
The matters stems from an application filed on behalf of APNU–AFC candidate supporter, Ulita Moore.
Moore, through her attorneys, had approached the Appeals Court in a bid to overturn a decision of the Full Court not to have her case heard by the High Court.
Moore’s request was for the Court to inquire into the constitutionality of a decision made by GECOM to have a high-level CARICOM team supervise a national recount of the votes cast in the March 2 elections.
The Full Court had, however, ruled that the High Court could not hear the application by Moore after a team of attorneys for the Opposition Leader Bharrat Jagdeo raised objections.
Jagdeo’s lawyers held that such matters should have been outlined in an elections petition.
As a result, the Appeal Court, which consisted of three judges, Justice Gregory, Justice Rishi Persaud and Justice Brassington Reynolds heard the appeal filed by Moore’s legal team.
Moore in her appeal contested that the Full Court erred in law by finding her case invalid in the context of jurisdiction.
In her ruling yesterday, Justice Gregory disagreed with the Full Court noting that, “if a party feels that GECOM is acting outside of its authority, then the court has jurisdiction to hear the case.”
Justice Reynolds was in agreement with the views expressed Justice Gregory.
Justice Persaud, however, was in total agreement with the Full Court. In a dissenting decision, Justice Persaud noted that GECOM is mandated to ensure a fair and impartial election and is required to put in place mechanisms to achieve that purpose.
“This Court is of the view that that the filing of judicial proceedings undermines the legislative process.
“On this point, it is clear that the filing of these judicial review proceedings has had the contrary effect to facilitating the efficient completion of the 2nd March 2002 National and Regional Elections. This is a clear demonstration of one type of mischief, which the legislature intended to address by providing in plain and simple language, that these challenges should be addressed by elections petition. The entire scheme of the elections matrix points significantly to the fact that the election process must swiftly and efficiently take its course so as to enable the elections results to be declared.”
On Friday, Moore ‘s lead counsel, Dr. Francis Alexis asked the Appeal Court to consider her request to have GECOM and its Chairperson carry out their functions, which is to declare the winning list of candidates and name the President.
He argued that the constitutional role of the GECOM Chairman and GECOM had not been usurped by the Caribbean Community (CARICOM) high-level team, which should have supervised the recount.
He held that the rule of law requires that the GECOM Chair and Returning Officer be treated equally.
“They are both subject to judicial review in the execution of their duties.”
Similarly, Dr. Scotland said that the issue of judicial review should be considered.
“The Full Court just got it plainly wrong. The Court does have jurisdiction to hear the matter.”
On the other hand, Trinidadian Senior Counsel, Douglas Mendes, who appeared on behalf of Opposition Leader, Bharrat Jagdeo, continued to rely on Section 140 of the Representation of the People Act, which prohibits any court from enquiring into deliberations and decisions of the Commission.
“As stated in Guyana’s constitution, it is an election court to hear issues concerning unlawful acts and omissions instead of it being dealt with at an intermediate stage.”
Mendes had stressed too that the supervision of the process by CARICOM was the mechanism which GECOM chose to correct the deficiencies which had been raised about the process and that arrangement would not take away from the powers of GECOM. GECOM has made a decision to conduct a recount of all the regions, starting from Region 10.
Despite the countrywide restriction because of the COVID-19 pandemic, GECOM is expected to make some key decisions this week on the recount which has snarled overseas donor assistance and access to funding for the virus fight.
President David Granger is without a Cabinet and holding on pending the recount.
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