Appeal Court denies application to block GECOM’s recount decision

The Appeal Court on Friday morning denied an application by lawyers for APNU/AFC candidate Ulita Moore to prevent the Guyana Elections Commission (GECOM) from making a decision on whether to proceed with a national recount or not, before the legal proceedings are completed.

Appellate Judges, Justice Dawn Gregory, Rishi Persaud and Brassington Reynolds are presiding over the appeal filed by APNU/AFC candidate Ulita Moore, challenging a decision by the Full Court.

On Tuesday the Full Court dismissed an injunction, seeking to block GECOM from conducting the Caribbean Community (Caricom) supervised recount, that was granted by High Court Judge, Justice Franklyn Holder, who had previously ruled he had jurisdiction to hear the case.

This was successfully challenged by Opposition Leader Bharrat Jagdeo in the Full Court. Chief Justice (ag) Roxane George, who presided in the Full Court along with Justice Naresh Harnanan, ruled that the High Court has no jurisdiction to hear the application filed by Moore.
The Full Court took into account the fact that the Chair of GECOM, Justice (ret’d) Claudette Singh, had given a public undertaking that the votes would be recounted to ensure that the results of the polls are credible and accepted by the various stakeholders.

As such, the interim injunction blocking the recount was discharged, paving the way for GECOM to go ahead with the process.
However, this led to Moore approaching the Appeal Court to challenge that decision.
At the commencement of Friday’s hearing, which was set for oral submissions, one of Moore’s battery of lawyers, Attorney Roysdale Forde, made the oral application for an interim order to prevent GECOM from making a decision until the court rules on the appeal.

But Attorney Kim Kyte, representing the GECOM Chair, indicated that she was hearing about this application for the first time and could not present a position in court without any instructions from her client.
“In respect to such important issues, I would prefer to have clear instructions from my client…,” she told the court, adding “I would’ve been placed in a much better position if my learned friends had served this application on me – even here in court. I would’ve been able to call my client… I was totally taken by surprise by this application.”

While the Judge did not grant the interim order sought, she, however, indicated that the court intends to hand down its decision on Sunday at 11:00h. As such, Justice Gregory asked that the Court be informed of any developments from GECOM, where a meeting was being held simultaneously.

Subsequently, before the hearing ended, Attorney Kyte informed the court that the seven-member Elections Commission has decided to do the national recount, but assured that this will not commence before the Appeal Court’s ruling on Sunday.

“I have been instructed that a decision was made to conduct a recount. However, the execution of that decision or the process will not commence before Sunday. So, in the circumstances, I believe neither of the combatting parties here will be prejudiced in any form or manner,” Attorney Kyte stated. Attorney Forde had accepted this arrangement, later telling reporters that they do not have an issue with GECOM going ahead with preparations but them conducting the recount when the matter was still pending in court.

Meanwhile, during Friday’s session, the Appellate Court heard submissions from the parties.
Among the issues raised during the submissions by one of Moore’s lawyers, Dr Francis Alexis, was that the agreement between President David Granger and Opposition Leader Bharrat Jagdeo to have a Caricom team supervise the national recount is usurping the power of the elections commission and its Chair.

However, Senior Counsel Douglas Mendes, arguing on behalf of the Opposition Leader, contended that it was GECOM that had made a decision to conduct the recount and this was evidenced in the fact, that it had tasked Chief Elections Officer, Keith Lowenfield, with preparing a plan on conducting the recount.

“The Commission decided to have a recount. Mr Lowenfield has testified that an order was prepared and he exhibited the order, indicating that the Commission was invoking Article 162 of the Constitution and Section 22… and the body of that law indicates that a recount is to be held and the modalities of that recount was set out there…

So the evidence, therefore, indicates that what the Commission was doing is exercising its power, as it saw fit and as it interpreted its powers under Article 162 and Section 22… they were exercising their interim power as it were to correct difficulties that had risen,” the Trinidadian Senior Counsel argued via video conference.

Furthermore, Mendes went on to point out that whether that recount is unlawful because it breaches the representation of People Act or it breaches the Constitution “must be raised in an elections petition.”
That point was reiterated by Attorney Timothy Jonas, who is representing the joiner parties – A New and United Guyana (ANUG), Liberty and Justice Party (LJP) and The New Movement (TNM).