APNU+AFC petition maintains allegations of irregularities
-challenges constitutionality of Section 22 of Election Laws Act
The Opposition APNU+AFC yesterday filed its much-talked-about elections petition challenging the results of the March 2nd General and Regional elections which saw the PPP/C winning the seat of government.
It was the latest chapter in an electoral saga that convulsed the country for five months and spawned a series of legal cases which went all the way to the CCJ before a result was finally declared on August 2nd.
The results of the national recount of all ballots cast showed that it was the PPP/C which had won the elections with 233,336 votes over the 217,920 which the coalition managed to secure.
Embattled Returning Officer (RO) for district four, Clairmont Mingo, is currently facing charges of misconduct in public office relating to electoral fraud. He had been publicly accused of manipulating the numbers in favour of the coalition.
While figures in District Four were inflated to show an APNU+AFC win, those for the PPP/C had been reduced.
The recount which would thereafter reveal a PPP/C victory was said by coalition commissioners of the Guyana Elections Commission (GECOM) to have revealed numerous anomalies affecting the credibility of the polls.
They and members of the current opposition had wanted those issues resolved but Chairperson of GECOM Justice (rtd) Claudette Singh had said that the Commission is not a court and therefore not vested with the powers to embark into such an enquiry and had said that an election petition would be the required route.
There had also been several court rulings endorsing this.
Apart from Mingo, several other persons have also been slapped with charges relating to electoral fraud, including Chief Election Officer ( CEO) Keith Lowenfield who had prepared several reports prior to the recount, aimed at declaring the APNU+AFC winners.
Claudette Thorne and Heston Bostwick— the applicants in the APNU+AFC petition, want the court to determine among other things, questions regarding whether the General and Regional Elections have been lawfully conducted or whether the results have been, or may have been, affected by any unlawful act or omission and in consequence thereof, whether the seats in the National Assembly have been lawfully allocated.
They depose through their attorneys Trinidadian counsel John Jeremie, Roysdale Forde, Raphael Trotman and Olayne Joseph that the elections were unlawfully conducted and/or that its result, “(if lawfully conducted)” were affected or might have
been affected by unlawful acts or omissions and that what was therefore declared by GECOM in pursuance of Section 99 of the Representation of the People Act (ROPA) was not lawfully conducted.
Section 22
Thorne and Bostwick cited Order No. 60 of 2020 by which the recount was facilitated pursuant to Article 162 of the Constitution and Section 22 of the Election Laws (Amendment) Act.
They, however, contend that Section 22 is unconstitutional in that it violates the separation of powers and impermissibly usurps the legislative powers of Parliament.
The regime created under Order 60 purportedly in pursuance of Section 22 and Article 162 they say, is itself ultra vires and inconsistent with Article 161 A of the Constitution and ROPA.
According to the applicants, GECOM was required to determine a “final credible count” as required by Order 60 only in the manner as set out in Order 60—that being they outlined, that “the matrices for the recount of the 10 electoral districts shall then be tabulated by the Chief Election Officer and shall be submitted in a report, together with a summary of the observation reports for each district, to the Commission.
Thorne and Bostwick contend further that the Commission was to after deliberating on the report, determine whether it should request the CEO to use the data compiled in accordance with report as the basis for the submission of a report under Section 96 of the ROPA.
The applicants advanced that Order 60 was to determine the final credible count, but that this was not achieved by the August 2nd declaration which saw the PPP/ C rising to power, because of the irregularities uncovered during the recount.
Fresh elections
The applicants are hoping that on this ground the court would quash the elections, set aside the declaration of August 2nd and order fresh elections.
Thorne and Bostwick say that not only did GECOM say that the recount was to arrive at a “final credible count,” but that it had established the criteria or standard for determining it, requiring the reconciliation of the ballots issued with the ballots cast: destroyed, spoiled and stamped; and as deemed necessary their counter foils/ stubs, authenticity of the ballots, number of voters listed and crossed out as having voted, number of votes cast without ID cards, the number of proxies issued and utilized, statistical anomalies and occurrences recorded in the poll book.
They noted that by virtue of Section 96 of ROPA, the CEO shall, after the declarations have been made by all the ROs for all 10 districts and same communicated to him, calculate the total number of valid votes of electors which have been cast for each list of candidates and, on the basis that the votes counted and the information furnished by the ROs, ascertain the results of the elections; and that the CEO, upon being in receipt of the declarations of the valid votes cast and or electoral returns for all districts is required to prepare a report in accordance with Section 96 (2) and furnish same to the GECOM.
Thorne and Bostwick have argued that Lowenfield has been in receipt of the said declarations of valid votes—Election Return for all the districts. They add that the statutory documents required to be signed by the ROs are the documents which must be submitted to the CEO and it is these documents which must be used to declare the results of the Elections under Section 96 of the ROPA.
Against this background the applicants argue that none of the documents, (inclusive of the Statement of Recount and the
Certificate of Recount) used in the recount process were gazetted and were therefore not required or permitted by the ROPA to be used for the declaration of the results of the elections under Section 96.The applicants recall that at a meeting on July 13th, GECOM refused to accept or act on the advice provided to it in the report by Lowenfield and that the Commission on July 13th purportedly invalidated the electoral returns furnished by the 10 ROs to the CEO immediately following the March 2nd elections in accordance with Section 86 of the ROPA.
Thorne and Bostwick are of the view that a subsequent letter from the Chairperson directing Lowenfield to submit a report in accordance with the recount was illegal as the certificate of tabulation used in the recount process was not Gazetted and is not required or permitted by the ROPA to be used for the Declaration of the results of the Elections under Section 96.
Null and void
The applicants reasoned that the certificates of district tabulation are not statutory documents and were not Gazetted and therefore the Chairperson’s use of data from these documents to declare the PPP/C’s Irfaan Ali President is null and void.
According to the applicants, the unlawful acts and/or omissions set out by their application affected the results of the elections which they say “would otherwise have lawfully resulted in a different placing of the respective lists of candidates.”
They say, too, that the elections were not held in conformity with the law in relation to elections, more particularly, the Constitution and the ROPA and Order 60 of 2020 as amended.
The applicants are contending that the elections were not conducted substantially or at all, in accordance with election laws and that this has in turn affected the results.
Thorne and Bostwick describe themselves as citizens of electoral district four who voted at the March 2nd polls.
The petition is yet to be assigned to a judge and a date is yet to be fixed for the hearing.
The Caribbean Court of Justice ( CCJ) had ruled that Order No. 60 was lawful and that it was the recount results which had to be used to make a declaration.
The apex court said that the Order did not create a new elections regime but through transparency, was to assuage certain contestations of the contesting parties and arrive at a final credible count in the March 2nd elections only.
One of the many cases prior to the August 2nd declaration had sought to advance that the Commission and its Chairperson could only make a declaration from the report submitted by Lowenfield based on declarations he would have received from the ROs of each of the 10 electoral districts as opposed to the results of the recount.
All the local courts and the CCJ which upheld the recount as being valid had said that the recount exercise had overtaken those declarations which could no longer be used to declare a winner of the polls.
The CCJ had ruled too, that the CEO was subject to the direction and control of the Commission and that he therefore had to prepare his report in accordance with the recount as he had been directed by the Chairperson.