By Shikema Dey
Guyana Elections Commission (GECOM) Chair, Ret’d Justice Claudette Singh has declined ‘active participation’ in the Bharrat Jagdeo,Irfaan Ali vs Eslyn David et al Elections Appeal Case at the Caribbean Court of Justice (CCJ) to be heard on Wednesday.
Through her attorney Kim Kyte Thomas, the Chair on Sunday informed the Registrar of the Court “That on further consideration, we do not wish to actively participate in the Appeal. In the circumstances, we do not wish to make any submissions.”
The respondents in the matter were all expected to file their submissions last weekend with extra time allocated for those who wished to counter.
Why the Chair took this position was not provided in the letter to the Registrar but according to former Attorney-General Anil Nandlall, Justice Singh’s non-submission will have no bearing on the case since Singh’s affidavit to the Court of Appeal remains part of the record of appeal filed by the applicants, Jagdeo and Ali. Nandlall explained that due to Singh’s position as a neutral constitutional officer, her decision was considered stand best practice in such a case.
In her submission to the COA, the GECOM Chair had argued for the court to quash the motion penned by Eslyn David seeking to block the Chief Elections Officer (CEO) Keith Lowenfield from submitting his final report to the Commission, on the recount figures for a declaration of the March 2, 2020 General and Regional Elections.
David had sought a declaration from the Appellate Court that GECOM failed to act in accordance with the Recount Order, in that they failed to determine a final credible count of the result of the March 2, 2020 Elections, along with an interpretation of the words “more votes are cast” in Article 177 (2) (b) of the Constitution, and an order restraining the CEO Keith Lowenfield from complying with the instructions of the Chair to prepare his final report without determining the credibility of the General and Regional Elections. She had filed her motion pursuant to Article 177(4) of the Constitution, which speaks to the Appeal Court having the jurisdiction to determine questions on the validity of an election of a President, either on questions of the qualification of a person elected to the presidency or the interpretation of any relevant section of the constitution.
Justice Singh, in her submissions, argued that the Appeal Court only has the power to interpret the Constitution, not to rewrite it. Further, she argued that Article 177 speaks to a “President” and pointed out that Guyana’s March 2 Election is yet to reach that stage. She argued that, “Hence, the first two orders sought, seeking a Declaration that GECOM failed to act in accordance with its order secondly an interpretation of the words “more votes are cast” and the affidavit filed in support do not touch and concern the qualification of a person elected President. It is respectfully submitted that the application is misconceived and ought to be struck out forthwith.”
The GECOM Chair pointed to the fact that questions on the credibility of an election can only be heard via an Elections Petition in the High Court – the Court with such exclusive jurisdiction. For these reasons, Justice Singh concluded that, “The Notice of Motion should be rejected by this Honourable Court and the Commission should be permitted to execute its constitutional role and functions to bring finality to the 2020 Elections.”
Following the arguments, the Appeal Court in a majority decision ruled last week Monday that the CEO must determine the results of the elections based on a calculation of valid votes in the context of Article 177 (2) (b) where it says “more votes cast” should be interpreted to mean “more valid votes cast.”
The very next day, the Opposition General Secretary Bharrat Jagdeo and Presidential Candidate Irfaan Ali, filed an Appeal with the CCJ in an attempt to strike down the ruling made by the Appellate Court. The PPP leaders in their application asked CCJ, in the interim, to grant an order restraining Chief Elections Officer, Keith Lowenfield from issuing his report on the elections, pursuant to Section 96 of the Representation of the People Act, or any other report based on the Court of Appeal’s ruling yesterday.
It also asked for an order restraining GECOM from taking any steps to determine “a final credible count” of the recounted elections results, or from enquiring into the validity or credibility of the votes cast, and an order restraining GECOM from usurping the exclusive authority of the High Court, as granted by Article 163 of the Constitution, to determine the lawful conduct of the elections.
However, Lowenfield also submitted his final report on Tuesday last, using alternate figures than those amassed at the recount which would see the Opposition People’s Progressive Party (PPP) emerging victorious with 233,336 votes – some 15,000 votes ahead of the governing Coalition’s 271,529. In Lowenfield’s report, he dumped 115,844 valid votes and claimed that the Coalition won the March 2 polls with 171,825 votes.
A single hearing is scheduled for the case tomorrow, beginning at 9 AM.
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