AHEAD of today’s hearing of the Misenga Jones case challenging the Guyana Elections Commission’s (GECOM’s) decision to declare the results of the General and Elections using data from the National Recount, the Chief Elections Officer (CEO), Keith Lowenfield told the Court that the approach taken during 33-day National Recount at the Arthur Chung Conference Centre (ACCC) was inconsistent with the Representation of the People Act, as he stood by his Election Report compiled on the basis of declarations made by Returning Officers in the 10 Electoral Districts.
In his Affidavit in Answer in the case – Misenga Jones v the Guyana Elections Commission and others – Lowenfield explained that the valid votes documented on the Certificates of Recount are not the same as determined by the Presiding Officers on March 2, 2020 due to various directions given during the Election Commission supervised National Recount.
He posited that the approach taken during the National Recount, which was triggered by Order No. 60, was inconsistent with the procedures outlined in the Representation of the People Act and the official manual for Presiding Officers and other Polling Day Officials (revised 2019).
In support of his position, the Chief Elections Officer provided the High Court with approximately five examples in the form of exhibits in which the Elections Commission, during the National Recount, validated votes in contradiction with the Representation of the People Act.
Additionally, Lowenfield told the High Court that the ‘Basket of Issues’ created during the recount exercise was amended to accept ballots with smudges or erasures as long as the voter intention appeared to be clear. However, he said, in some instances, ballots were invalidated though some Elections Commissioners argued that the voters’ intentions were clear. “…overall, there was inconsistent application of the ‘new rule’ depending on arguments proffered or the officials involved,” the CEO said.
To add weight to his position, Lowenfield furnished the Court with a table depicting the number of ballots for which the status assigned by the Presiding Officers in the presence of the Counting Agents and persons entitled to be there on March 2, 2020, was redefined during the National Recount as captured in the Observation Reports.
According to that table, in Region One (Barima-Waini), nine rejected ballots were validated while three valid ballots were changed to rejected during the National Recount. Over in Region Two (Pomeroon-Supenaam), 12 rejected ballots were changed to valid while one valid ballot was changed to rejected; in Region Three (Essequibo Islands – West Demerara), 37 rejected ballots were changed to valid and 32 valid ballots changed to rejected; in Region Four (Demerara-Mahaica), 305 rejected ballots were changed to valid and 192 valid ballots changed to rejected.
Over in Region Five (Mahaica-Berbice), a total of 48 rejected ballots were changed to valid and 20 valid ballots changed to rejected; in Region Six (East Berbice-Corentyne) 82 rejected ballots changed to valid and 27 valid ballots changed to rejected; in Region Seven (Cuyuni-Mazaruni), 30 rejected ballots changed to valid and eight valid ballots changed to rejected; in Region Eight (Potaro-Siparuni) 26 rejected ballots changed to valid and two valid ballots changed to rejected; in Region Nine (Upper Takutu-Upper Essequibo) two rejected ballots changed to valid and three valid ballots changed to rejected; and in Region 10, 21 rejected ballots changed to valid and 31 valid ballots were changed to rejected. Overall, 572 rejected ballots were changed to valid and 319 valid ballots were rejected.
“The Commission’s instructions changed from one day to the next depending on the questions that arose during the recount. Further, there was no strict adherence to the procedure for determining valid votes as described in Section 84 (6) of the Representation of the People Act Cap 1:03. For instance, as shown in the ‘Basket of Issues,’ on the 6th day of May, 2020, the Commission redefined a valid vote to mean a ballot cast where the voter’s intention [was clear],” the Chief Elections Officer explained. He pointed to the fact that the no Returning Officer or District Counting Agents were appointed to conduct or attend the National Recount.
Lowenfield told the Court it was the Chairperson of GECOM, Justice (Ret’d) Claudette Singh, who had committed to a recount but at the level of the Elections Commission. “…The Chairperson, Claudette Singh, on the 13th day of March, 2020, appeared before the High Court of the Supreme Court of Judicature in contempt proceedings and indicated to the Court that the tabulation was in progress and should there be any discrepancies in the Statements of Poll as declared by the Returning Officer and those held by political parties, the discrepancy should be noted and at the end of the process, if they could not be addressed, she will endeavor to facilitate a recount at the level of the Commission,” he recalled.
He further noted that as a result of complaints by political parties, Order No. 60 was brought into effect on May 4, 2020 to remove difficulties connected with the application of the Representation of the People Act. Referencing to the recent judgment of the Caribbean Court of Justice (CCJ), Lowenfield said the Court in pronouncing on Order 60 did not compel the Elections Commission to use the recount data in the Elections Report.
“The Caribbean Court of Justice did not say the results of the recount are to form the basis of the Chief Elections Officer’s report rather the Caribbean Court of Justice states ‘it is for GECOM to ensure that the elections results are swiftly declared in accordance with the Laws of Guyana,’” he pointed out.
According to him, the Elections Report tendered on June 11, 2020 is consistent with Section 96 of the Representation of the People Act. That report, however, did not find favour with the Chairperson of GECOM, who had ordered that it be replaced with one that reflects the National Recount data. Lowenfield is being represented by Senior Counsel Neil Boston.