Chief Justice should have acted to ensure spirit of her decision was not trampled upon by compromised GECOM staff

Chief Justice should have acted to ensure spirit of her decision was not trampled upon by compromised GECOM staff

Dear Editor,

I recently had the opportunity to read the written Elections 2020 judgment of Chief Justice (ag) Roxane George-Wiltshire, and a number of issues became readily apparent, the most serious of which has already materialized (GECOM and Mr. Mingo’s actions on March 12, and 13, 2020).

Guyana is a small place; the learned judge cannot be oblivious to the shenanigans at GECOM. Judicial notice should have been taken given that the issue was of national importance.

The assumptions implicit in the Chief Justice’s (ag) decision was that the rectitude and ethical values of the staffers at GECOM were intact. She further assumed, incorrectly, that they were exhibiting constitutional morality in executing their duties. The evidence suggested otherwise. At the time of the court hearing, a number of persons were irreparably compromised. It was naïve for the Chief Justice (ag) to assume that the fact that they are constitutional office holders meant anything to them. Their actions demonstrated otherwise.  From what I observed, the SOPs are designed with control features. These are necessary to preclude mischief and manipulation. The serial numbers embedded in the SOP aids in authentication and is a tool for transparency.  It is trite that in any given process, the parties and observers necessarily have to be able to compare GECOM’s document with the ones in their possession, particularly in the instances where there are discrepancies in the vote count.

Simply put, the parties present must be able to see/hold/touch/examine GECOM’s document in its original form, and must be able to compare it to the security features (number series) and entries on their copies and images. A further tool for probity is the examination of the names and signatures that are affixed on the SOPs. It is this comparison that ensures credibility and transparency, and it is an absolute. Anything less is unacceptable.

The Court in its ruling noted that only the Statements of Poll (SOPs) in possession of GECOM are of consequential authority. However, what seems to have escaped judicial attention is the fact the SOPs which are in the possession of political parties and observers are carbon copies of GECOM’s, and pictures of the SOPs displayed at the polling places. Logic dictates that the SOPs in the possession of GECOM will match the carbon copies and photos of the SOPs in the possession of parties and other observers. The security features will correspond, as well as the data entered into the fillable segments. In an ideal situation, reasonable people would be able to come up with an acceptable process to compare these, a process that ensures transparency and probity. However, reason has long escaped the halls of GECOM. This was not unknown to anyone in Guyana.

The Court’s failure to elucidate a process to be followed while extensively expositing on the maximum powers of the RO left it open for the judgment to be misused. After all, it was the RO’s illegal act that brought the matter to the Court. That should have given pause, and the learned jurist should have cast her mind on the opportunities for mischief. The fact that the matter was before the Courts was ample evidence that the RO was not acting ethically despite being a constitutional office holder. What was the basis to expect that the RO would now act differently?

The actions of GECOM’s staff since judgment day were reasonably foreseeable by the Court.  The evolution of what happened from the judgment day to the time of writing confirms this position. The RO’s actions prior to the Court hearing exemplified the mischief that was possible. The Court could have avoided this imbroglio.

The Court should have contemplated and considered the following: (1) Must the parties unquestioningly accept GECOM’s SOPs despite the fact that the chain of custody for the SOPs were broken? (2) Must the parties accept GECOM’s SOPs despite the fact that the Guyana Police Force commandeered the Command Centre? (3) Must the parties accept not being allowed a credible and fair process to authenticate the SOPs in GECOM’s possession through a comparison with the copies in their possession? (4) Must the parties accept GECOM’s SOPs despite the fact that the only people having access to GECOM was its compromised staff and members of the Government? These questions should have animated the Court’s decision because ambiguity allowed for further subversion.

Prudence dictated a clear and pedantic directive in the vitiated and morally compromised environment of GECOM. The acts to be completed needed to be spelt out, in addition to the manner in which said acts are to be executed. As the saying goes, “the devil is in the details.” Corrupt acts thrive in the grey areas. Even if there was ambiguity in the law, the prevailing environment necessitated a directed approach. The inherent supervisory power of the Court was enough to allow for some direction.

Absent clear directions, the Court’s decision left a suspect character as the arbiter for a fair, transparent and credible process. How quaint! That its decision is being exploited towards an illegal declaration is unsurprising. The grave illegalities committed should have consequences. The Court should have acted (and must act) to ensure the spirit of its decision was not trampled upon.  Guyanese should not have to take recourse in an onerous elections petition while their democratic will is hijacked by a compromised constitutional body. Guyanese should not have to be subjected to even a single day of an illegal President and Government because the Court shirked its responsibility.

It is 2020 and we are being failed by our institutions. Guyanese deserved better. Unfortunately, the storm was not calmed.

Yours faithfully,

Kowlasar Misir

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