By Kemol King
Chief Elections Officer Keith Lowenfield is bound to submit a report on the results of the national recount, as he has been so instructed on several occasions, a restriction that has been pointed out across several documents and which has been most recently affirmed by the Caribbean Court of Justice (CCJ).
The results of the national recount have shown that the People’s Progressive Party Civic (PPP/C) won the elections with 233,336 votes, ahead of the APNU+AFC coalition’s 217,920 votes. On June 16, the GECOM Chair, Justice Claudette Singh took note of the end of the national recount and the necessity for a swift conclusion of the electoral process and instructed Lowenfield to submit a report on the results of the recount.
This had followed an attempt by Lowenfield in his preliminary report, to invalidate nearly 270,000 votes in a bid to hand a false victory to APNU+AFC on trumped up claims of voter impersonation and irregularities. The Chair resisted his attempts, pointing to the need for any question of the validity of the election to be investigated by the High Court in an elections petition, after the elections.
Her letter had stated, “Pursuant to Article 177 (2) (b) of the Constitution and Section 96 of the Representation of the People Act, Chapter 1:03, you are hereby requested to prepare and submit your report by 13:00 hrs, on 18th June, 2020 using the results of the recount for consideration by the Commission.”
Lowenfield disregarded the Chair’s clear instructions, as a motion was filed in the Court of Appeal by a woman named Eslyn David, an agent of the coalition, to give Lowenfield legal cover to invalidate votes. On the very day, it was announced that the CARICOM Scrutineer Team had completed its report on its observation of the national recount, in which it declared that the elections were “reasonably credible” and that the recount results should form the basis for the declaration of the elections results.
“The Team notes that there were some irregularities at the 2020 elections,” the Team had stated, “which were revealed through the very transparent national recount, but none of these irregularities and shortcomings are sufficient nor substantial cause, to call the 2020 results into question…the Team categorically rejects the public efforts to discredit the 2020 poll up to the disastrous Region 4 tabulations. Despite our concerns, nothing that we witnessed warrants a challenge to the inescapable conclusion that the recount results are acceptable and should constitute the basis of the declaration of the results of the March 02, 2020 Elections.”
The team report went on to declare, “We are of the unshakeable belief that the people of Guyana expressed their will at the ballot box, and as a result, the 3 person CARICOM Observer Team concludes that the recount results are completely acceptable.”
As for the Coalition’s claims about the credibility of the elections, the Team had stated “Any aggrieved political party has been afforded the right to seek redress before the courts in the form of an election petition.”
Following the publication of the report, all international observers endorsed its findings and held their support for a swift declaration of the recount results to bring a resolution to the protracted electoral process.
Justice Singh, in her submission to the Court of Appeal had made a similar observation to the findings of the CARICOM Team, on claims of electoral fraud. She asked the Court to strike down the motion brought before it, arguing that, “any challenge to the validity of an election and any dispute or claim of any irregularities or illegalities in relation to an election can only lawfully form the basis of an election petition after the result of the election has been made known.”
“The forum of the elections court is the appropriate place to assess the evidence,” Singh had submitted, “to determine if it has crossed the threshold of sufficiency to vitiate the 2020 Election. It is respectfully submitted that GECOM does not have that jurisdiction.”
On June 22, the Appeal Court handed down a ruling, purporting to assume jurisdiction granted to it by Article 177 (4) of the Constitution to determine a question of the validity of the election as that question depended on the interpretation of the Constitution. It gave an interpretation of Article 177 (2) of the Constitution – which speaks to the criteria for the identification of the President-Elect – stating that “more votes are cast” means “more valid votes are cast” in a move which gave Lowenfield the latitude to revise the results of the recount.
Consequently, Lowenfield handed a report to GECOM on June 23, which sought again to hand a false victory to APNU+AFC by dumping 115,844 votes. This was seen as a clear act of insubordination, but Lowenfield resisted such reasoning, arguing that he has to execute his duties as a constitutional officer.
On that very day, PPP/C’s presidential candidate, Dr. Irfaan Ali moved to the Caribbean Court of Justice (CCJ) to challenge the ruling of the Appeal Court.
On the following day, outgoing Chair of CARICOM and Barbados Prime Minister, Mia Mottley condemned the attempt by Lowenfield to unilaterally invalidate 115,844 votes. Building on the findings of the CARICOM Team, the then Chair said “we must ask – on what grounds and by what form of executive fiat does the Chief Elections Officer determine that he should invalidate 1 vote, far less over 115 000 votes when the votes were already certified as valid by officers of the Guyana Elections Commission in the presence of the political parties.”
Mottley reminded that if there is any evidence of fraudulent conduct, then there is a clear and well accepted route, an elections petition in an election court. The Caribbean Court of Justice assumed jurisdiction over the appeal brought before it by Irfaan Ali, on July 8 and ruled that the Appeal Court did not have jurisdiction to rule in the manner in which it did. As a consequence, the Court struck down the Appeal Court’s ruling and invalidated Lowenfield’s report.
“By the unnecessary insertion of the word ‘valid’,” the Caribbean Court said, “the Court of Appeal impliedly invited the CEO to engage unilaterally in a further and unlawful validation exercise that trespassed on the exclusive jurisdiction of the High Court established by Article 163.”
The Court held that any question of the validity of an election should be handled by the High Court, as Article 163 of Guyana’s Constitution grants it the exclusive jurisdiction to do so.
While the CCJ did not grant any orders, as it did not have the jurisdiction to do so, the President, Justice Adrian Saunders said, “It is for GECOM to ensure that the election results are swiftly declared in accordance with the Laws of Guyana.”
Justice Singh acted in accordance with the guidance of the CCJ, and instructed Lowenfield on July 9 to submit a report on the results of the recount. The Chair qualified her request for the recount figures, by saying that they should be the “valid votes counted in the National Recount” – not by his own metric – but “as per Certificates of Recount generated” from the recount exercise. Justice Singh reminded Lowenfield that as CEO, Section 18 of the Election Laws Act No 15 of 2000 stipulates that he is subject to the direction and control of the Commission. With a deadline of 2 pm yesterday, media operatives flocked to GECOM’s Kingston HQ, only to find out that Lowenfield opted not to hand in the report, and claimed that he needed clarity on the Chair’s instruction.
The Chair’s response was that her previous letter of instruction for the submission of the recount results stands. Though Lowenfield avoided receipt of that letter yesterday, by leaving GECOM on the claim that he received a death threat, the Chair put her words in writing and gave Lowenfield a new deadline of 11 am today.
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