Don’t aid and abet elections fraud – GECOM Chair pleads with Appeal Court

Decision due on Thursday…

Attorneys arguing against the appeal filed by A Partnership for National Unity +Alliance For Change, (APNU+AFC) Counting Agent, Misenga Jones to block the final elections declarations have asked the Court to ensure that electoral fraud is not perpetuated in Guyana.

Jones through her lawyers, Mayo Robertson, Roysdale Forde and John Jeremie want final declarations to be made based on a report containing the disputed figures of the March 13, Region Four declaration. The crux of Jones’ complaint is that Section 22 of the Election Law Amendment Act (ELAA) is unconstitutional and Order 60 of2020 by which the recount was conducted is invalid and of no effect.
This is contrary to a decision by the Chief Justice (ag) Roxane George- Wiltshire which she ruled last week, that the final declarations must be made on the basis of the figures from the elections recount process. The recount figures show a victory for the opposition People Progressive Party Civic over the APNU +AFC.
In her submissions before Justices of Appeal Dawn Gregory, Rishi Persaud and High Court Justice Priya Sewnarine-Beharry yesterday, Kim Kyte-Thomas, Attorney for Chairperson of the Guyana Elections Commission (GECOM) retired Justice Claudette Singh, pleaded with the Court not “to aid and abet illegalities” committed by agents of GECOM by legitimizing the report containing March 13 fictitious figures presented by Region Four Returning Officer, Clairmont Mingo.
She was not the only lawyer ardently arguing this point; Trinidad-based Senior Counsel Douglas Mendes representing the People Progressive Party Civic (PPP/C) was amongst the list of opposing legal teams making similar presentations.

ELECTORAL FRAUD
Leading the arguments on the issue of electoral fraud, Kyte-Thomas, former Solicitor-General, contended that when the Court properly examines the case, there is no other conclusion that can made except that the appellant (Jones) is asking the judiciary to aid and abet specific illegalities which led the March 13 Region Four declarations.

The appellant is asking the Court to set aside figures of the recount process which was hailed at transparent by Guyana’s Apex Court, the Caribbean Court of Justice (CCJ), and instead rely on the March 13 declarations.
“Your Honours, I ask this Honourable Court not be used as an instrument of fraud. They dressed up their application in a lot of legalese but that is what they are asking this Court to do,” she said.

Relying on the legal provisions cited in her written submission, Kyte-Thomas noted that GECOM is tasked with the duty of ensuring that its statutory officers carry out their functions in keeping with the law.
She said, “That is what GECOM is doing by directing the Chief Elections Officer (CEO), who is a statutory officer within the Commission and e is subject to the disciplinary control of GECOM.”

Further, the attorney noted there was no election dispute as is outlined by the complaints of the appellant. Rather, she said contentions foisted on the Court by way of appeal are best suited for an Elections Petition. The lawyer added, “These are matters for an election court after the final declarations has been made.” She held that, as such, the appeal lacks merit.

Kyte-Thomas also noted that 9 of ten of the questions raised by Jones’ appeal formed the case of Ulita Moore – a case which was just weeks ago brought to the Court. “This matter is clearly res judicata and this is an attempt at re-litigation which amounts to an abuse of the Court’s process,” the lawyer said, adding that in light of her expressed views, the Court must act swiftly to dismiss the appeal since the nation needs closure to the electoral process.

Trinidadian Senior Counsel, Douglas Mendes arguing on behalf of the PPP/C made similar contentions. He noted that it was the fraud which was perpetuated by Clairmont Mingo that led to the series of litigation. He noted that it is because of the controversy relating to Mingo’s declaration and his denial of requests for recounts, that GECOM issued Order 60 requiring the recounting of all the ballots in all 10 Districts. According to the Mendes, the recount was to be carried out under the supervision of the CEO who was required to report on the results of the recount.
He noted that GECOM was then to decide whether to require the CEO to produce his report in accordance with the recount. GECOM in fact so decided and directed the CEO.

“However, despite the express terms of Section 18, the CEO refused to comply with GECOM’s instructions but instead prepared a report using Mingo’s fraudulent declaration and accordingly giving the APNU the majority of the seats in the National Assembly and presumably returning Mr. Granger as the President. He did so because he was of the view that the recount was unlawful,” Mendes said.

Noting that the issues had been previously outlined in cases before, Mendes said it was his respectful submission that it was fruitless spending any time on examining the niceties of the law on res judicata.
“This Court had determined these matters before,” he held.
In his presentation, Mendes also beseeched the Court to take into consideration that the case filed Jones is asking the Judiciary to make legal a final declaration based a report by the Chief Elections Officer containing the disputed March 13 declaration in District Four.

AN ABUSE OF PROCESS
Senior Counsel, Ralph Ramkarran in his representation of Liberty and Justice Party (LJP) also alluded to the abuse of process.
These contentions were also submitted to the Appeal Court by way of his written submission. According to that submission, Ramkarran noted that issue of abuse of process was not formally raised in the High Court.
He stressed that the matter in the appeal arises from the facts already proved and from the decision of the Chief Justice: “In her decision, the Chief Justice said:, ‘In the light of the discussions the decisions of the CoA and CCJ have guided me in answering the issues that have arisen as a consequence of the 28 claims for reliefs sought by the applicant.’”

Apart from Section 22 which was specifically cited, Ramkarran noted the CJ pointed that there are a number of reliefs claimed in this application which were claimed in or mirrored in the claims in Ulita Moore, and others. “Indeed,” he added “although couched in different terms, the application for the most part mirrors that in Moore, and in effect, are similar to that of Ms. Eslyn David in the Ali case.”

NEW ISSUE
Meanwhile, arguing in favour of the appeal, Senior Counsel John Jeremie held that the issue of the illegality of Section 22 and order 60 of 2020 was never raised in the applications before. He held that it is their contention that Section 22 of the ELAA is Unconstitutional and Order 60 is invalid and of no effect.

The lawyer therefore noted that Section 22 of the ELAA confers upon GECOM a wide, unfettered and unregulated discretion to make laws which is ultra vires the Constitution and contrary to the rule of law.
According to him, Section 22 tramples upon the separation of powers doctrine by conferring on GECOM an arbitrary law-making power to make, amend and repeal primary legislation by mere order.

He noted that, “The delegation of power to GECOM to modify existing Acts of Parliament related to elections is undeniably unconstitutional. Article 160 of the Constitution vests Parliament with the exclusive authority to enact election laws.”

“The wide effect of Section 22 of the ELAA is such that GECOM can of its own volition set out its own unmonitored policy, such as Order 60, with respect to the conduct of elections. It is also submitted that for GECOM to make orders and modify law affecting the proceedings of an election by mere order well after the election has occurred is contrary to the rule of law and in particular, to the principles of legal certainty and legality. GECOM is incompetent so to do,” he explained.

In contrast, several lawyers presented their submissions in favour of the legality of ELAA and Order 60 of 2020. Of note, Ralph Ramkarran for the Liberty and Justice Party, (LJP); Kamal Ramkarran for A New United Guyana (ANUG) highlighted historical facts behind the creation of the ELAA and its constitutionality.

Those submissions were supported by Sanjeev Datadin, Stephen Singh and Jameela Alli for the United Republican Party (URP); Attorney Kashir Khan who appeared in association with Mohamed Khan for The Citizen Initiative and Change Guyana; and Attorney, Timothy Jonas for The New Movement (TNM).
The Court of Appeal is set to rule on the matter on Thursday at 11:00 am.