Highlights of the CCJ decision on the Court of Appeal ruling

Parliament had not made any provisions giving effect to Article 177(4) and no genuine question was raised concerning the validity of the election of the President. He also held that: (i) the application was premature as no President had yet been declared to have been elected; and (ii) the High Court has the exclusive jurisdiction to determine the validity of an election pursuant to Article 163 of the Constitution;

(e) The Court of Appeal granted a stay of its judgment for three days. However, the following day, the CEO submitted another report to the Commission in which he invalidated over 115,000 ballots previously counted and certified as valid during the recount process. He justified his action by stating it was based on the Court of Appeal’s decision; and

(f) On 23 June 2020, Messrs. Ali and Jagdeo applied to the CCJ for special leave to appeal the Court of Appeal decision. Leave was granted, and the parties involved were requested to make oral and written submissions on two broad issues: (i) Whether the Court of Appeal had jurisdiction to entertain Ms. David’s application and what are the consequences in relation to the proposed appeal; and (ii) If the Court of Appeal rightly assumed jurisdiction but it exceeded its jurisdiction, what are the consequences in relation to the proposed appeal.

Article 123(4) of the Constitution gives Parliament the power to make the CCJ the final court of appeal for Guyana. To give effect to this, the CCJ Act of 2004 was passed, and it is this Act that determines the CCJ’s jurisdiction. In the case of Barbados Rediffusion Service Ltd v Mirchandani, it was determined that the CCJ had jurisdiction to entertain applications for special leave to appeal from any decision of the Court of Appeal in any civil matter. The CCJ, however, acknowledged that Section 4(3) of the Act does not give it jurisdiction to hear matters relating to any decision of the Court of Appeal ‘which at the time of entry into force of this Act were declared to be final by any law’. One such law is Article 177(4). (Although not mentioned, the Court of Appeal decision that was the subject of appeal, was made last month, some 24 years later.) for each list of candidates’.

The determination of such validity is a transparent exercise that weeds out of the process, for example, spoilt or rejected ballots, an exercise that is conducted in the presence of the duly appointed candidates and counting agents of contesting parties. It is after such invalid votes are weeded out that the remaining “valid” votes count towards a determination of the elections results. Unless and until an election court decides otherwise, the votes already counted by the recount process as valid votes are incapable of being declared invalid by any person or authority.

By the unnecessary insertion of the word “valid”, the Court of Appeal impliedly invited the CEO to engage unilaterally in an unlawful validation exercise. This trespassed on the exclusive jurisdiction of the High Court established by Article 163. It was inconsistent with the constitutional framework for the CEO or GECOM to disenfranchise thousands of electors in a seemingly nontransparent and arbitrary manner, without the due processes established in Article 163 and the Validation Act. Referring to the case of Re Eusi Kwayana’s Application that was cited, the CCJ noted that the Court of Appeal had declined jurisdiction in an application challenging the validity of an election where it was alleged that there was a defect in the oath of office taken by the President. The CCJ found that the case illustrated the strict and narrow interpretation by the courts of Article 177(4).

In view of the foregoing, the CCJ ruled as follows:

(a) The provisions of Article 177(4) were not triggered by Ms. David’s application to the Court of Appeal, and the finality clause was inoperable;

(b) The CCJ had jurisdiction to hear and determine the application by Messrs. Ali and Jagdeo to set aside the decision of the Court of Appeal;

(c) The Court of Appeal decision was made without jurisdiction. It was therefore not final and is of no effect;

(d) The CCJ is entitled and required to declare it invalid and, likewise, the report issued by the CEO which was based on it. It follows that the appeal of Messrs. Ali and Jagdeo succeeds.

In his concluding remarks, Justice Saunders stated that as Guyana’s final court, the CCJ cannot pretend to be oblivious of events that have transpired since December 2018. He asserted that:

It has been four months since the elections were held and the country has been without a Parliament for well over a year. No one in Guyana would regard this to be a satisfactory state of affairs. We express the fervent hope that there would quickly be a peaceable restoration of normalcy.

Last Thursday, GECOM Chair wrote to the CEO requesting him to submit a report in accordance with Article 177(2)(b) of the Constitution and Section 96 of the ROPA the following day, ‘using the valid votes counted in the National Recount as per Certificates of Recount generated therefrom’. She reminded the CEO that the law requires him to be subject to the direction and control of the Elections Commission. In response, the CEO stated that he needed a number of clarifications and was given until Saturday to make his submission. This he did, but instead of using the recount results, the CEO submitted his report that included the contaminated results of Region 4 in an earlier report he had presented. That report was held in abeyance pending the outcome of the recount exercise.

The meeting of the Commission to review the CEO’s report was aborted because of a lack of a quorum, as the Government-nominated commissioners did not turn up. The Commission is expected to meet again today; and those present, including the Chair and three commissioners, would constitute the quorum. The nation anxiously awaits the outcome of the meeting.