Today marks 118 days during which Guyanese have been waiting the results of the General and Regional elections of March 2. Guyana wins hands down the prize for the longest delay in the declaration of the results of any elections anywhere in the world and the elections with the most number of attempted declarations. The first was by R 4 Presiding Officer Clairmont Mingo at the Ashmins’ Building and then there was Mingo at the GECOM Headquarters. Then there was the first of four by Chief Elections Officer Keith Lowenfield in March which GECOM is holding in abeyance. Then on the 13th June, Lowenfield submitted what amounted to three declarations – one a tabulation of the valid votes giving the PPP/C a clear victory; a second, narrative report in which he stated that the results of the elections could not be ascertained because of anomalies and impersonation; and yet another where he adjusted the tabulation by deducting 275,092 votes or close to 60% of the votes cast thereby giving the APNU+AFC a huge victory.
Then taking his cue from a Court of Appeal decision which he appeared to have anticipated, he made a further declaration citing the CoA’s decision itself. This time, in an act of generosity with which he was not usually credited, Lowenfield re-enfranchised 159,248 of the 275,092 which he had previously disenfranchised. What is remarkable is that within one day, Lowenfield was able to review the entirety of the 275,092 votes which he had previously rejected to make such a wonderful change. And he did this all by himself with no observer, no instruction and no assistance! What a man, what a feat! He will either end up among the pantheon of election geniuses, or in jail.
Then taking its cue from Lowenfield’s later figures which give them a narrow one-seat majority, the APNU+AFC has been going around their strongholds with Lowenfield’s ‘declaration’. The APNU+AFC having previously failed to convince even its diehard supporters of its victory, now hopes to feed them the Lowenfield lie. All of which only serves to make the options facing Guyana being civil unrest if the PPP/C comes out the winner or sanctions if the APNU+AFC manages to have Granger sworn in.
This is the background against which the Caribbean Court of Justice (CCJ) will be hearing arguments in an appeal brought by Bharrat Jagdeo and Irfaan Ali against a decision of the Court of Appeal in the matter brought by Eslyn David, yet another supporter of the PNC-R/APNU with the sole purpose of delaying the results of the March 2, 2020 elections. The substantive matter is an action brought before the Court of Appeal in which the APNU+AFC succeeded on a 2:1 vote, as it did in the GECOM Chair James Patterson and the No Confidence/majority of 65 case. In each of these cases, the decision of the Court of Appeal was overturned but once again Attorney General Basil Williams exudes tremendous confidence, telling the CCJ that it has no jurisdiction in the matter! He is not only an optimist but a masochist basing his argument on Section 4 (3) of the Caribbean Court of Justice Act and completely overlooking Section 6 of the very Act.
There is a lot of talk and much hope for a decisive outcome from the CCJ in this matter. I am less optimistic. The first has to do with my own experience with the CCJ in the No Confidence Vote case and I recall the absence of precise, definitive and clear orders which the APNU+AFC used to perpetuate itself in office. Had there been a clearer judgment by the CCJ, the current issue might not have arisen in the first place. In this David’s case, the CCJ has to consider essentially two matters: whether the Court of Appeal had jurisdiction to hear the case and second whether the court’s insertion of the word “valid” in Article 177 of the Constitution of Guyana in the context of “more votes are cast” really adds anything as Williams, Lowenfield and the APNU seem to think.
There are a number of possible outcomes in this matter, including holding that only one or the other issue stands. For example, the CCJ can rule that the CoA had jurisdiction but that it exceeded its powers or wrongly decided the interpretation issue under Article 177 (4) of the Constitution. Or it can rule that given the absence of any legislation to give effect to Article 177 (4), the CoA had no jurisdiction. If the CCJ finds that the CoA had no jurisdiction or its insertion of the word “valid” in excess of its jurisdiction, then Lowenfield’s June 23 report also fails. Of course, the CCJ’s own jurisdiction in this matter is being called into question, a position which I think will not succeed. Now, having stated that I am less than optimistic, I do find it hard to see the CCJ ignoring the impasse which has now gone on for three months or the results of the recount in which the region’s legitimate interlocutor participated and concluded as constituting valid votes.
Whichever way the Court goes however, the matter will go back to GECOM which has a constitutional duty over elections, including powers to exercise control over the Chief Election Officer. Lowenfield is not the all-powerful unbridled horse that he thinks he is, nor can those who benefit from his misdeeds immune him from the consequences of his misadventures.
For now, Guyana remains a constitutional democracy and all Guyanese have an interest to see that it remains that way. Lowenfield’s/APNU+AFC’s alternative is far too frightening to contemplate and must be avoided at all cost. It would not only be the end of democracy as contemplated by our Constitution, but the very end of our country as we know it.
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