It is public knowledge that what has been described as a “total recount”, seemingly inspired, perhaps instigated, by CARICOM, of the votes cast in the ten (10) districts at the General and Regional Elections 2020 (GRE’s) is impending.
Whatever semantic jargon be employed to cloak the Terms of Reference (TOR) that will guide the implementation of this so called “total recount” with some semblance of legality, any such “total recount”, if implemented, will be metaphorically dead on arrival at the Caribbean Court of Justice.
We Submit, there is simply no constitutional or statutory basis for it. It is contrary to law. The well-known principle of generous or purposive interpretation of constitutional provisions does not mean that there must and can be some procrustean interpretation of the Election Laws (Amendment) Act #15/2000, Constitution and the Representation of People Act, cap 1:03 Laws of Guyana, to lend either legitimacy or credibility to such a patently misconceived idea. A crystalline distillation, of the relevant provisions of the Constitution, and EL(A) A and ROPA that touches and concerns GRE’s in the sovereign Cooperative Republic of Guyana, and consideration of case law and legal principles about ultra vires and (non) contracting out of statutes, yields the following conclusions of law ; and mixed fact and law. We summarize and state these conclusions briefly;
First, the conjoint effect of article 60,161,162(1) and 226(1) & (7) of the Constitution is that GECOM is a creature of the Constitution which the framers intended in its conduct of GRE’s to be independent, fair, impartial, autonomous and not subject to the control or direction of any other person or authority (except of the course, the Supreme Court of Judicature);
Secondly, consistent with the (rebuttable) presumption of constitutionality of the EL (A) A and ROPA< GECOM is bound to give effect, and substantially comply with and obey the provisions of the ROPA. There cannot be violations by GECOM.
Thirdly, the conjoint effect of in particular sections 84, 86, 87, 88, 89, 96 and 99 of ROPA is that the declarations by the ten respective Returning Officers, of the votes cast for each of the contesting political parties in ten (10) districts, are in the events which have happened, (and subject to ascertainment/verification by Chief Election Officer) FINAL and ought to have been (on the assumption of such ascertainment) declared and published by GECOM.
Fourth, the Ventose (2018) 92 WIR 118 decision of the CCJ which concerned Barbadian statue law corresponding to or in pari materia with our ROPA, is we submit, an emphatic rejection of GECOM’s “total recount” policy. That policy is but a flagrant violation of the clear, unambiguous wording of the ROPA. GECOM has no discretionary powers vis-à-vis the ROPA requirements.
Fifth, Parliamentary sovereignty (we do not say supremacy) which by articles 51 and 164 of our Constitution is entrenched at the deepest level in our constitutional architecture, cannot be subverted by, and subordinated to, the whims and fancies of extra- constitutional actors. The ROPA which has imposed specific duties on PO, RO and CEO is an emphatic expression of such sovereignty.
Sixth, (not necessarily in significance) consistently with the finality of the Returning Officers declarations, the APNU+AFC and its presidential candidate David Arthur Granger both have a fundamental right to complain that upon a generous and purposive interpretation of the fundamental right to freedom of expression (article 147) that fundamental right has been, and is being contravened, in relation to it, and him, by GECOM’S delay in its declaration and publication. After all, the raison d’etre, the whole beneficent purpose of forming a political party, expending huge sums of money in the contestation of GRE”s every five years, is to attain victory at the polls by the democratic process encapsulated in, inter alia, the Constitution and the ROPA, and be the Government for the next five (5) years.
In the events which have happened, midnight on March 17, 2020 is the expiry point for the conclusion of declaration and publication. We are fully convinced and have concluded that the proposed “total recount” if implemented, will amount to a blatant abdication by GECOM of its constitutional and statutory duties. Also, a usurpation of parliamentary sovereignty by extra-constitutional actors.
Every voting elector- supporter of the APNU+ AFC list must be aggrieved by GECOM’s unreasonable delay in the declaration, publication of the results and the consequential swearing in as President of Mr. David Arthur Granger. Pacification of an electorally defeated, vexed and disappointed Opposition is not provided for in the ROPA, nor is appeasement a constitutional function of GECOM. And what if the “total recount” materially increases the amount of votes in favour of APNU+AFC? Would that increase be valid? We think not. On both principle and authority it cannot be supported.
Maxwell. E. Edwards
For: Concerned Lawyers