Claudette Singh wants case thrown out, so she can declare results

Attorney for Guyana Elections Commission (GECOM) Chairperson, Kim Kyte- Thomas yesterday made a stirring presentation for Chief Justice Roxane George-Wiltshire to throw out the case filed to compel GECOM to rely on nothing but the disputed figures presented by Chief Elections Officer (CEO) Keith Lowenfield.

The Chief Justice is scheduled to hand down a decision on Monday at 4:00 pm via live stream on the Supreme Court website. During a six hour long hearing before Justice George- Wiltshire at the Georgetown Supreme Court, Kyte-Thomas was among several attorneys who presented arguments in opposition to the case filed by Misenga Jones seeking declarations to prevent the CEO from using the recount figures as the basis for the final declaration.
The recount figures show a victory for the Opposition People’s Progressive Party Civic (PPP/C) over the incumbent A Partnership for National Unity +Alliance for Change (APNU+AFC). Jones, a registered voter and APNU+AFC counting agent during the recount, is seeking orders to prevent the CEO from using the recount figures as the basis of the final declaration.

In her submission yesterday, Kyte-Thomas noted the matter is the only thing seeking to stop GECOM’s Chairperson, retired Justice Claudette Singh, from declaring the final results based on the results of national vote recount.
She stressed that contrary to Jones’ complaint, Section 18 of the Election Laws (Amendment) Act of 2000 specifically provides that the Chief Elections Officer shall be subject to the direction and control of the Commission.
She argued that Lowenfield cannot go off on a “frolic” of his own and put himself above GECOM, the laws of Guyana and even the Constitution.

Kyte-Thomas stressed it would be unthinkable that one man, an employee of GECOM, could be vested with such absolute and unchecked power.
Further, the lawyer advanced that the Chief Elections Officer is a statutory officer subject to the disciplinary control of the Commission and that Article 161 (1) A, Section 2 of Representation of the People Act (ROPA) and Section 18 of the Election Laws (Amendment) Act of 2000 bear this out.
In this regard, she stated that Guyana’s Constitution and electoral laws never contemplated that the CEO would be a power unto his own and dictate to GECOM.

RES JUDICATA

Additionally, the lawyer argued that the Caribbean Court of Justice (CCJ), Guyana’s final court of appeal made a decision in a similar case, hence Jones’ application tramples on the principles of Res Judicata and should be thrown out.
Her arguments were supported by attorney Kashir Khan, representing The Citizen Initiative (TCI) and Change Guyana (CG); attorney Timothy Jonas, representing The New Movement (TNM), and Sanjeev Datadin representing the United Republican Party (URP).

The lawyers all supported the argument that the case before the High Court is in breach of the principle of Res Judicata.
In her argument on this point, Kyte-Thomas referenced the judgment of the CCJ. She noted that the Court was pellucidly clear when it concluded that the valid votes which were recounted must be used.
“In the words of President of the CCJ, Justice Adrian Saunders: ‘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’,” the lawyer said.

She noted that and issues raised before the High Court were really about the impact of Order 60 and the conduct of GECOM. As such, Kyte-Thomas said that the issues are therefore res judicata having already been ventilated and addressed by the CCJ. Kyte-Thomas said therefore that the matter should be dismissed on the grounds that it amounts to an abuse of the court’s process.
“These issues are just crafted differently but were ventilated and determined by courts of competent jurisdiction to so do,” she told the court.

Refuting the contentions of Neil Boston and John Jeremie – the lawyer representing Lowenfield and Jones, respectively – that the mechanism by which the recount figures were derived are unconstitutional, Kyte-Thomas contended that the Recount Order was in keeping with the law.
She stressed that the recount results cannot therefore be replaced by the declarations contained in Lowenfield’s report of March 13, 2020 or any other alternate report to the request for the recount report made by the Chair.
The lawyer therefore urged the Court to reject the application so that the Commission could be permitted to execute its constitutional role and functions to bring finality to the March 2020 Elections.

JURISDICTION
Lead counsel for the main Opposition Party – the People Progressive Party/Civic, Douglas Mendes sought to have the case thrown out on the point of Jurisdiction.
He said given the arguments raised about Res Judicata, the High Court is without jurisdiction to handle the matters filed by Jones. The lawyer noted that in his view the case is a non starter since it relates to the validity of an election.
“These are matters that must be dealt with in an elections Court, Milady, and Guyana’s supreme law is clear such a petition can only be entertained after the declaration of an election,” Mendes explained
Mendes noted too that the Representation of the People Act clearly states that the functions of the Commission cannot be questioned at this point.

According to the lawyer, in the face of this uncontroverted evidence of botched figures, GECOM would be acting unlawfully and in violation of the electorate’s constitutional right to vote and to representatives of their choice, if it gave effect to Clairmont Mingo’s fraudulent declaration.
“This Court would also be facilitating an illegality if it were to make any order which effectuates that declaration,” Mendes added.

In light of the foregoing, Mendes stressed that it is clear the Chief Justice does not have jurisdiction.
“In the event that madam assumes jurisdiction,” the lawyer noted “that act would be unconstitutional.”
Attorney, Kamal Ramkarran in his representation of A New and United Guyana, (ANUG) also stressed on the point of the court’s jurisdiction.

He noted the proceedings concern decisions made by the Elections Commission or its members or decisions which are to be made by it or its members, arguing that the issue has been the subject of litigation recently.
“In the recent litigation,” he said that “the Full Court determined that, in light of the clear and unambiguous provisions of section 140 of the RoP Act, Cap 1:03 together with section 3(1) of the National Assembly Validity of Elections Act, Cap 1:04, a challenge to the validity of decisions of members of the Elections Commission could only be made in an election petition.”

Additionally, Ramkarran said that the Court of Appeal found, however, that section 140 was effective in excluding the Court’s intervention in relation to functions that fall within the responsibilities of the Commission in its management of the election process.
“The validity of those acts would be matters to be dealt with under the exclusive jurisdiction reserved for election petitions,” he said.

DISPUTE
Ramkarran’s contention was disputed by lead counsel for the applicant, John Jeremie.
Jeremie held that the Court has jurisdiction to hear the matter. He claimed that the validity of the elections could be challenged at this point given that in his view Section 22 of the Election Laws (Amendment) Act — the mechanism by which the recount order is derived is unconstitutional.

He likened the elections law to Humpty Dumpty – it was broken and cannot be amended.
The lawyer based the substance of his arguments on Article 177(2) (b) of the constitution.
He stressed that Article 177 (2) (b) of the Constitution states: “where there are two or more Presidential candidates, if more votes are cast in favour of the list in which a person is designated as Presidential candidate than in favour of any other list, that Presidential candidate shall be deemed to be elected as President and shall be so declared by the Chairman of the Elections Commission acting only in accordance with the advice of the Chief Elections Officer, after such advice has been tendered to the Elections Commission at a duly summoned meeting.”

Similarly Senior Counsel Neil Boston, Attorney for the Chief Elections Officer, argued that since Lowenfield, on March 13, presented a report of the declarations made in all ten regions, the GECOM chair must use that to declare the results and nothing else.
“GECOM cannot, by subsidiary legislation, (Order 60, made for the recount) give itself the power to resolve election disputes that arise during the course of an election which said disputes the Constitution has placed in the exclusive jurisdiction of the Election Court,” Boston submitted to the court.

He said, “Order 60 (the recount order) is unlawful and the results are invalid and no declaration from that recount can be made lawful…Order 60 is stillborn.”
Further, Boston opposed the position that Section 22 is constitutional but Order 60 conflicts with Section 22.