Last updated on Wednesday, 7 April 2021, 15:16 by Denis Chabrol
The Guyana Elections Commission (GECOM) on Wednesday told an opposition-related High Court election petition hearing that the election control authority did nothing wrong by making a recount order because difficulties plagued the March 2 general and regional election process , 2020.
“Even if your Ladyship could find a breach, then there were no consequences that affected the conduct or outcome of the account and, therefore, in any event, Your Ladyship should dismiss the petition,” said GECOM’s Solicitor-at-Law, Anthony Astaphan hearing an election petition presided over by Chief Justice Roxane George-Wiltshire.
The Chief Justice has set April 26 at 11 AM for the passing of her decision in the Claudette Thorne election petition and another against Keith Lowenfield.
The Commission’s solicitor’s position appears to be in direct contrast to the position of Chief Returning Officer Keith Lowenfield and the three now-defunct election commissioners A Partnership for National Unity + Alliance for Change (APNU + AFC) that the statements by the Return Officials should have been used to declare the results of the March 2, 2020 general and regional elections. In one case after the recount, Mr Lowenfield had sought to revoke thousands of votes to come to credible votes cast, saying the recount process has shown obvious inconsistencies of voter imitation, inconclusive votes due to missing documents and other irregularities.
Mr Astaphan told the Court that there was no pleading in the case to suggest complete non-compliance with the provisions of the Representation of the People Act which provides for recount, to remove difficulties experienced by GECOM and Guyana and to credible recount to state results for President and Senate. “Our main submission is that there is no breach … We stand by our written submissions, in full and absolutely no breach,” he said. The Dominican-born Senior Counsel further argued that Section 22 is constitutionally related to Article 162 of the Guyana constitution and Order No. 60 is entirely consistent with Section 22 and Article 162.
He queried what GECOM should have done in the face of “interference” by the Returning Officer and the Chief Returning Officer and the “difficulty in obtaining co-operation to resolve the issue” to declare outcome and disorder. Mr Astaphan said that even the High Court found that there was a breach, that the petition should be dismissed
GECOM’s lawyer said that the petitioner had not established that a cut affected the election. “There must be relevant details and facts that set out exactly how that would have been done,” he said.
Bharrat Jagdeo, Senior Counsel for Trinidad and Tobago, argued for the Civic Representative of the Progressive Party of Governors on the Candidate List that if the High Court finds Section 22 to be constitutional, then a large part of petitioner’s case will lapse .
With regard to the making of Recounting Order No. 60, he said that the National Assembly constitutionally has the power to enact Section 22 which vests powers in the seven-member GECOM based on adequate policies and guidance. Mr Mendes said that Order 60 does not purport to amend or modify the Representation of the People Act but authorizes the departure of the strict provisions of that law. He noted that many requests for recalculations had been refused and others had been withheld. “We say there are plenty of guidelines and controls operating under Section 22,” he said.
The solicitor said that it was “understandable” that the Returning Officers had not done the recount because of difficulties that had arisen by a “dedicated” Returning Officer. He reasoned that Order 60 required votes to be counted rather than rejected except provisions under the Representation of the People Act which state that votes may be rejected if they do not have the official mark, it is unclear to whom voters vote or if someone votes on more than one list of candidates. Mr Mendes asked the Chief Justice to find that the recount was done with the consent of all political actors and there were no complaints of disenfranchisement.
Attorney General, Senior Counsel Anil Nandlall, among the commission, there is “competition” even though it is an independent, constitutional and autonomous body that unanimously produced Order 60. He further stated that there was no evidence that the results of the recount were different from that showing irregularity or illegality. “What is being claimed is almost academic compared to the process itself,” he added.
He said that GECOM could legally set aside Returning Officers’ statements because of their difficulty.
Trinidad and Tobago Senior Counsel John Jeremie- representing the petitioner – said that Order 60 ultra vires Article 163 of the Guyana constitution because the settlement of election disputes must be settled through an election petition. He added that if GECOM could not make laws, that is “constitutionally bad”
Mr Jeremie said there was no “gray area” but instead “swept all, not one, all the statements made” and proceeded to recount. “That can’t be an error correction,” he said.