Chief Justice’s rulings on the two election petitions

Before proceeding with today’s article, a brief comment on two governance issues is not inappropriate. The first relates to the scandal at GUYOIL where board members got themselves involved in matters that are the preserve of management in relation to the negotiation of a procurement contract. The second involves GPL where two expensive vehicles were purchased from a business associated with the Chairman of the State-owned company. These two matters raise important questions about the basis of selection of board members generally; and whether they really understand their role and the parameters within which they are required to function.

Potential board members ought to have been screened to ensure that their private interests are unlikely to conflict with their public duties. In this regard, the Article 4 of the Integrity Commission Act is clear on the issue of conflict of interest. It specifically requires public officials, among others, to ‘refuse or relinquish any outside employment, shareholdings or directorship which creates or is likely to create a conflict of interest’.

Background to the filing of election petitions

All three Courts of competent jurisdiction - the Caribbean Court of Justice (CCJ), the Guyana Court of Appeal and the High Court - have ruled that that the results of the recount of all the votes cast in the 2 March 2020 elections remain valid unless overturned by the High Court via an election petition. In the case Irfaan Ali et al v Eslyn David, the CCJ had ruled that ‘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’. Ms. David’s application should therefore have been addressed to the High Court under Article 163 of the Constitution via an election petition within 28 days of the declaration of the results.

Article 163 provides for the High Court to have exclusive jurisdiction to determine, among others, any question regarding the qualification of any person to be elected a member of the Assembly; and whether an election has been lawfully conducted or the results have been or may have been, affected by any unlawful act or omission. By Section 5(1) of the National Assembly (Validation of Elections) Act, an election petition has to be filed within 28 days of the declaration of the elections results. Any decision of the High Court is appealable right up to the CCJ as the final court of appeal.

In the case Jones v GECOM, the Chief Justice dismissed the application by Misenga Jones, an APNU+AFC supporter, seeking to block the Commission from using the results of the recount to declare the winner of the elections, and to compel it to use the ten district declarations contained in the CEO’s report of 13 March 2020 instead. The Chief Justice ruled that most of the issues were considered res judicata and could not therefore be re-litigated. She alluded to the CCJ ruling that unless overturned by a Court in an election petition, the only data that could be used to declare the results of the elections would have to be the recount results or data. She concluded that ‘the ten declarations cannot be resurrected at this point in time. In this regard, there can no longer be an impasse between the Chairperson and the CEO as to the effect of art 177(2)(b) and s 96’.

The Court of Appeal unanimously disallowed the appeal against the Chief Justice ruling and emphasized that the various challenges to the validity of the recount Order could only be addressed via an election petition after a declaration is made and the elections process comes to an end, not before. It considered that these challenges amounted to an abuse of the court’s process. One of the Judges, Justice Sewnarine-Beharry, added that, given the CCJ’s endorsement of the validity of recount Order, the Court was ‘estopped from enquiring into any matter which had the effect of vitiating an election, or from enquiring into whether GECOM or its members had validly performed their functions, except by way of an

elections petition’.

Filing of election petitions

Having exhausted all the legal avenues available to prevent the Elections Commission from declaring the results of the elections based on the recount of all the votes cast, the APNU+AFC filed two election petitions in accordance with Article 163 of the Constitution. On 31 August 2020, lawyers for Claudette Thorne and Heston Bostwick filed Election Petition No. 88 of 2020 with the High Court, challenging the declared results of the 2 March 2020 elections and requesting the Court to determine, among others, whether the elections have been lawfully conducted or whether the results have been, or may have been affected by any unlawful act or omission, and whether the seats in the National Assembly have been lawfully allocated.

On 17 September 2020, Election Petition No. 99 of 2020 was filed on behalf of Monica Thomas and Brennan Nurse on 17 September 2020. The petitioners contended that the elections were unlawfully conducted and/or that the results, (if lawfully conducted), were affected or might have been affected by unlawful acts or omissions. Accordingly, they requested the Court to determine the legality of the elections and of the results that led to the declaration and allocation of seats in the National Assembly. The petitioners were also seeking an order to direct the GECOM Chair to declare former President David Granger the winner of the elections.

Chief Justice’s dismissal of Election Petition No. 99 of 2020

On 18 January 2021, the Chief Justice threw out Petition No. 99 of 2020 because of a breach in the filing procedure for the case. Section 8 requires the petitioner to serve notice on the respondent not exceeding five days after the filing of the petition. However, the respondent, former President David Granger, did not sign the related court documents until 25 September 2020 which was outside the five-day period stipulated by Section 8.

The Chief Justice considered that non-adherence of service within the specific timeline would make the petition a non-starter, noting that Mr. Granger was a necessary party in the proceedings. She stated that there was compelling evidence to support the respondents’ argument that the former President was not served with the petition on time. The Chief Justice further noted that both the affidavit of service and the return of service documents were inconsistent, adding that while there was sufficient time within which the petitioners could have brought to the attention of the court what they described as a genuine mistake in recording the date of service, no effort was made to so do.

The Chief Justice rejected supplementary affidavits filed by the petitioners which sought to explain that the former President made a mistake when he signed the related court documents and that the petitioners had made a careless blunder. She, however, considered the explanations “preposterous” and “absurd.” The Chief Justice then declared Petition No. 99 of 2020 a nullity and dismissed it.

The Chief Justice agreed to commence hearing of Petition No. 88 of 2020 on 7 April 2021 and set 12 February 2021 for the petitioners to submit their arguments. The respondents were required to file their responses by 5 March 2021, and any further submissions were to be made by 19 March 2021. The Chief Justice also ordered GECOM to hand over its Statements of Poll (SOPs) and Statements of Recount (SORs) to the Registrar of the Supreme Court for safe-keeping and not to destroy any other documents connected with the elections until the petition is heard.

Court hearing of Election Petition No. 88 of 2020

On 7 April 2021, the Chief Justice heard arguments from attorneys for both the petitioners and the respondents. The petitioners’ main argument was that Section 22 of the Election Laws (Amendment) Act 2000 under which GECOM issued Order No. 60 for the recount of votes, was unlawful. Section 22 reads as follows:

If any difficulty arises in connection with the application of this Act, the Representation of the People Act or the National Registration Act or any relevant subsidiary legislation, the Commission shall, by order, make any provision, including the amendment of the said legislation, that appears to the Commission to be necessary or expedient for removing the difficulty; and any such order may modify any of the said legislation in respect of any particular matter or occasion so far as may appear to the Commission to be necessary or expedient for removing the difficulty.

Any order under subsection (1) shall be subject to negative resolution of the National Assembly, only if Parliament is not dissolved and not otherwise, and shall not be made after the expiry of three months from the date of the election.

The respondents’ rebuttal was that the Commission is in fact empowered under the said Act to resolve the difficulties that may arise during the election process. To this, the petitioners argued that the any such difficulties ought to have been dealt with by way of an election petition, and not by an order issued under Section 22. They further argued that power could not be delegated by Parliament to GECOM, and therefore Section 22 which facilitates this, is unlawful.

The respondents countered by insisting that the Commission is endowed with the power vested in it under Section 22 which is obtained by virtue of Articles 162 and 163 of the Constitution, to resolve any difficulties it may experience. They argued that anything else would result in chaos, hence the recount Order. However, the petitioners contended that the initial declarations could only have been overturned by an election court and not by any Order of GECOM.

The respondents further argued that GECOM really did not need Section 22 to act to resolve the difficulties with which it was confronted as it is so empowered to do so even under Article 162 of the Constitution; and Section 22 merely supplements or provides one of many mechanisms for ensuring that there is compliance with Article 162.

Chief Justice ruling on Election Petition No. 88 of 2020

Last Monday, the Chief Justice handed down her ruling on Petition No. 88 of 2020 in which she stated that Elections Commission acted in full compliance with the Constitution and the electoral laws in its conduct of the elections. She noted that neither Section 22 nor Order No. 60 is outside the realm of the Constitution and that the intent of the latter was to resolve irregularities, discrepancies, and anomalies occurring in the elections process and to determine a final credible count. The Chief Justice added that Section 22 is meant as an aid to the process to determine the election and is not a usurpation of the High Court’s jurisdiction under Article 163 of the Constitution:

Section 22 provides the parameters for its efficacy, and the power granted therein is not arbitrary. It includes sufficient mechanisms to establish that Parliament did not surrender or abdicate its powers. Thus, I hold that there was a lawful delegation of power as provided for in Section 22 so that GECOM could independently and properly control the election process.

The Chief Justice also noted that Section 22 authorises GECOM to make subsidiary legislation and that the power is only applicable when it appears to the Commission necessary or expedient for removing any difficulty. She rejected the argument that the power to modify the law can only be futuristic as this would not address any difficulties that would have arisen. The Chief Justice added that Order No. 60 did not confer any additional powers on GECOM but simply altered the procedure to arrive at the result that the Representation of the People Act requires.

Finally, the Chief Justice ordered that the SOPs and the SORs remain in the custody of the Court in the event that an appeal of her ruling is filed with the Court of Appeal. The Opposition APNU+AFC has signalled its intention to appeal the Chief Justice ruling.

Conclusion

The Chief Justice ruling on Petition 88 of 2020, though not unexpected, is a most enlightening one. From the plain reading of Section 22 of the Election Laws (Amendment) Act 2000, it is evident that GECOM has the power to make subsidiary legislation to address any difficulty that may arise in the conduct of an election, subject to a negative resolution by Parliament. Since Parliament was dissolved at the time, there could have been a negative resolution and this has been catered for under Section 22(2).

Hailing the Chief Justice ruling as ‘a bold, compelling and erudite analysis of the law’, former House Speaker Ralph Ramkarran asserted that:

When published, it will stand at the pinnacle of the Caribbean’s and Guyana’s already considerable jurisprudence on election law. It will become a permanent landmark to guide those everywhere who seek to uphold the integrity of elections, and to the legacy of a Chief Justice with many years of productive work ahead.