The legal debate on the latest election petition before the High Court was played out on Friday afternoon with oral arguments. Respected lawyers who listened in to the arguments tell me that the petitioner does not have a case. A lower court cannot upend the judgment of an apex court. The CCJ being the final court passed judgment on the election matter and instructed GECOM what it ought to do. Was the order valid? The Commission must carry out that order and bring the election to finality.
Guyanese are very frustrated saying GECOM has let the nation down by not moving expeditiously to declare the outcome of the election. Supporters of both sides want the process to end and want the Commission to do the right thing one way or the other and stop dithering. They say it had several opportunities to make the declaration but failed to do so. Many are now saying that the Commission is behaving the same way the government did when it lost the no confidence motion – judicial proceedings. Some even accused GECOM of giving the coalition time to file one judicial petition after another.
The gist of the petitioner’s case is GECOM cannot instruct the CEO what numbers to use for a declaration. Listening to the oral arguments before the CJ, it was quite embarrassing for one side that stammered with inarticulate illogical arguments and evasive responses from probing questions of the judge. The other side was direct and very clear with their presentations. The petitioner’s arguments were very weak and their answers to the CJ’s questions were not good. Their presentation was also very poor in terms of language and persuasion. Some spoke very badly and ineloquently; they don’t belong in a court. I was quite impressed with the forceful use of language by Mr. Edwards though the case he presented was weak; at least he tried to impress and one could listen to them. The client petitioner could do without the rest of them; she could have appeared for herself and made a better argument on her own. Some with letters behind their names are not worth the fees.
The AG said if the CEO prepared a flawed report, the way to correct it is to go for an election petition. So if the CEO manufactures numbers that don’t reflect the outcome of an election, one must accept it. Then using the same logic, in using the right recount numbers for the declaration, if GECOM’s action is flawed, then the way to go is to file an election petition.
The defendants made very strong arguments. As usual, Mendes was excellent. Other lawyers, the Ramkarrans, Kashir Khan, Jonas, Kim Kyte, among others were all stars. They shone. It was clear to me which side won the debate and how the court would rule. Kyte was excellent and short and pointed and convinced me that the judge will rule in GECOM’s favour. Counsel is right that one can’t take a whimsical report and arguments of the CEO or allegations from a party in making a declaration. The law does not allow for an investigation of allegations. That is done via an election petition.
Arguing that one has to use the count of the ten regions and ignore the recount to make a declaration of an election in idiotic and absurd. The purpose of a recount is to verify the count. And in this case, it panned out – within a fraction of deviation by a decimal point of the real unofficial count. The argument that one can ignore or invalidate a recount is specious. The CCJ so ruled on the matter.
The recount did not change the original count of authentic SOPs in the hands of poll workers and observers. No amount of fraud would be accepted. No court can supersede CCJ and instruct GECOM not to use the recount figures to make a declaration. The CEO acted with the intention to impede the declaration of the election results as ordered by the elections commission. He is acting against the law and can be brought up on charges. He must be charged for misconduct and for being partisan and partial.
If GECOM is serious about a declaration, then it can act call an early meeting on Tuesday morning and dispose of the matter. The CEO is a servant of GECOM. The Chair is the boss. The CEO can’t dictate what numbers he wants to use for a declaration. He must use the numbers advised. One person can’t decide the outcome of the election or hold the commission hostage. He must be removed. Since Lowenfield has already failed half a dozen times to provide a declaration, then someone else must be given the instruments to prepare the declaration.
Regrettably, the judgment is coming late in the day on Monday. When will GECOM meet to complete the declaration? How much time will it need to study the ruling? People ask how much time would GECOM give the petitioner to appeal the ruling for it remain in court so as to prevent a declaration? Delaying the declaration to provide time to read, re-read, and giving the same person the power to prepare the final figures is telegraphing the loser what to do, giving time what to do. The Chair must proceed with the declaration early Tuesday.
Dr. Vishnu Bisram