On June 26 2020 in the Kaieteur News, in a letter captioned, “I believe the CCJ has Jurisdiction, I said we are going through interesting times. I felt it became much more interesting when I saw the report of the CEO to the Chairman of GECOM. Mr. Lowenfield, the CEO of GECOM, stated “I have taken note of the guidance of the Court Appeal in Eslyn David v Chief Elections Officer et al in the preparation of my Report under Section 96 of the Representation of the People Act and providing advice as required by Article 177 (2) (b) of the Constitution of the Cooperative Republic of Guyana.”
Apparently, he concluded that this guidance advised him to determine valid as opposed to invalid votes and so using his own discretion or understanding deducted from the numbers in the declaration presented to him by the Returning officer of the recount and gave the APU+AFC victory at the recent Regional and General elections.
Search as I may, I could not find anywhere in the orders that he was advised to determine valid and invalid votes or for that matter any definition of Valid or invalid votes.
I am not a lawyer but I decided to read the laws and I do believe I could read and comprehend. Section 177 (2) states, “A presidential Candidate shall be deemed to have been elected as President and shall so be declared by the Chairman” and (b) simply states where there are two or more list the designated candidate of the list where “more votes are cast” is declared the President.
The Court of Appeal did say “more votes cast” means “more valid votes cast”. It is however assumed that if the Constitution says more votes cast it could not have meant any other but valid votes as it is inconceivable the constitution could have meant invalid votes.
I then decided to look at Section 96 of the Representation of People Act as the CEO says he was guided by it. Section 96 states, “The CEO shall, after calculating the total number of valid votes of electors which have been cast for each list of candidates, on the basis of the votes counted and information furnished by returning officers under section 84 (11) ascertain the result of the elections in accordance with 97 and 98” Note 97 and 98 deals with the allocation of seats.
Note Section 96 mentions “valid votes”. Also 84 (11) and 89 (1) mentions valid votes and so again, it was not necessary for the Court of Appeal to interpret this issue.
Considering space and the fact that this is a recount I would move to Section 89 (1) which states, “Upon conclusion of the final count, under Section 84, of the votes the returning Officer in the presence of such person entitled under Section 86 (1) to be present as attend, shall” and a list of things were stated about what to do with the ballots etc. So we move to 89 (1) (d) which states, “prepare a written statement as to the result of the verification of the ballot papers… 89 (1) (e) states, “publicly declare the final result of the counting” and 89 (1) (f) states, “deliver to the CEO a return in writing in respect of the final counting in form 24 which shall set out the number of (i) valid votes cast for each list of candidates as aforesaid,” it continues to list spoilt, tendered ballots, etc.
Here recurring is the expression “valid votes”. Bear in mind that the officers of GECOM and the returning officer would have heard certain objections and allegations and would have noted same and in the end would have delivered to the CEO a return which sets out the number of “Valid Votes”. Note also that for transparency and the writers of the Act would know why the act says that these numbers must be publicly declared. This means the public would be notified of the results of the recount and I suppose this was to prevent any slip between the cup and the lip. So finally, the public is made aware of the “valid votes cast for each list.
I searched for any section, any loophole, that would or could alter the publicly disclosed numbers and found none.
Now I would repeat Section 96, “Section 96 states, “The CEO shall, after calculating the total number of valid votes of electors which have been cast for each list of candidates, on the basis of the votes counted and information furnished by returning officers under Section 84 (11) ascertain the result of the elections in accordance with 97 and 98” Note 97 and 98 deals with the allocation of seats.”
The CEO has to calculate the number valid votes cast on the basis of votes counted (note, “valid votes” that have already been placed in the public) and information furnished by the returning officer. Of course there were other information like number of spoilt ballots, etc., which have already been accounted for, and he has to ascertain the results of the elections in accordance with Sections 97 and 98 which means ascertain the number of seats.
Now as I stated, I am not a lawyer but I would like someone, anyone to point out to me that the law suggests that the CEO could determine as invalid votes what has been validated by the process and presented to him in statements by the Returning Officers as valid votes
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