Region Four declaration unlawful – CJ orders return to vote tabulation process

Mar 12, 2020 News

---

Chief Justice (ag) Roxane George yesterday issued an order for the Returning Officer (RO) for District Four, Clairmont Mingo, to return to the legally prescribed procedure for tabulating the votes for the Region, after she deemed the previously declared results unlawful.

The Chief Justice (CJ) ordered Mingo to return to the process by 11:00 hours today.
The ruling follows proceedings filed by Reaz Holladar, a private citizen who challenged the Guyana Elections Commission (GECOM) on the grounds that the RO failed to comply with the electoral procedure prescribed by Section 84 of the Representation of the People Act.
The Act in question outlines a process whereby the tabulation of the votes is done in the presence of certain persons required to be there.
The applicant’s case led by Trinidadian Senior Counsel Douglas Mendes, backed by a team of People Progressive Party/Civic lawyers, asked the Court to examine the fact that Mingo’s declaration for District Four relates to the tabulation of 421 of the 879 Statements of Poll (SoPs).
The arguments proffered to the Court is that based on the affidavits provided, the declaration made was based on calculations of an elections clerk and not the RO himself.
Mendes noted that “The votes were processed in Mr. Mingo’s absence after he took ill and was rushed to the hospital. When he returned, all the data had been inputted into a computer by Ms. Miller and other clerks who assisted her. Ms. Miller had supervised the data entry process.”
He said that Section 86 (1) of the aforesaid Act states that the Returning Officer can decide which elections officer can assist him.
However, the lawyer qualified that Ms. Miller did not fall into that category and as such could not be designated to perform such duties by the Returning Officer.

Senior Counsel Neil Boston, representing Mr Mingo, argued that the Returning Officer can adopt whatever methodology he decides he will pursue to come up with the results. Boston said the Returning Officer can sit with the persons who are entitled to be there and he will go through the Statements of Poll or he can prepare a spreadsheet from the Statements he has, and thereafter declare the amount of votes received by each party.
He claimed that his client complied substantially with the law in this regard.
NON –COMPLIANCE
In her ruling yesterday, Chief Justice George agreed that there was substantial non-compliance on Mingo’s part as it related to the procedure required by Section 84 of the Representation of the People Act.
Citing the submissions made, the Judge stressed that it was pellucid that the affidavits filed in support of the applicant motion cast doubt on the work of the elections commission.
Pursuant to Section 84(1) of the Act, Justice George asserted that the Returning Officer shall, “in the presence of such of the persons entitled to be there” as stated in Section 86(1) of the Act, ascertain the total votes cast in favour of the each list by adding up the votes recorded in accordance with the Statements of Poll provided before declaring the total amount of votes cast in each district.
Further she noted that Section 86 (1) lists the persons who shall be present at the counting of the votes as the Returning Officer, elections officers appointed by the RO to assist him with the counting, elections officers, duly appointed candidates, counting agents, and others with good reason.
In the context of these elections, the CJ noted the latter group may include the local and International observers. For officials in the context of GECOM, the CJ specified that this meant the Chief Elections Officer, Deputy Chief Elections Officer and polling agents.
However this process was not followed and the CJ noted “It is hardly any secret that there have been significant irregularities presumed or real in the electoral process.”
“Serious doubt,” Justice George noted, still remains, and the public demands answers.
She stressed therefore that the role of the elections commission and its staff is to take such action as appears necessary to ensure impartiality, fairness and compliance with the provision of the constitution and any other Acts of Parliament.
“In the present volatile situation which pervades the country, no effort must be spared to ensure the process was fair and impartial.
“The lingering doubts that hang like the sword of Damocles over the heads of the commission must be removed and confidence in the electoral process must be restored.”
STRICT ORDERS
Consequentially, the CJ granted several orders setting aside the declaration made for district four.
The CJ noted that “The declaration made on March 5, 2020 by the Returning Officer for District Four of the total votes cast for District Four was unlawful and in breach of Section 84(1) of the Representation of the People Act and is hereby vacated and set aside.”
She said too that any act done pursuant to the said declaration is hereby deemed null and void and of no effect
“Subject to my admonition as regards the role of persons entitled to be present and attend, the Returning Officer and/or the Deputy Returning Officer must comply with Section 84(1) in ascertaining the total votes cast in favour of each list and the public declaration of votes so recorded for each list of candidates.”
Further, the Judge noted that GECOM cannot lawfully declare the results of March 2nd, 2020 general elections until the Returning Officer or Deputy Returning Officer for District Four complies with and/or ensures compliance with the provisions of Section 84(1) of Chapter 103.
Additionally, the CJ made several injunctions granted by Justice Navindra Singh, which block GECOM from making the declarations until they are compliance with the law, absolute
“The injunctions are now made final.”
URGENT ACTION
Given the urgent nature of the matter, the Chief Justice gave consequential orders directing that the Returning Officer or Deputy Returning Officer for District Four must commence compliance with Section 84 (1) of the Representation of the People Act Chapter 103 no later than 11:00 hours today, March 12, 2020.
The Judge nonetheless noted that it is for the Returning Officer and the Deputy Returning Officer for District Four, to decide whether the process of determining whether the process should be restarted or continued.
The Chief Justice noted, however, that the Returning Officer and Deputy are carrying statutory roles, and attorneys from both sides agreed that the law does not state expressly how they are to carry out their functions as it relates to the final declarations.
According to the CJ, it is up to the officers to accept or reject any dispute claims made about in relation to SOPs or declarations made.
Justice George noted that therefore anybody else that thinks they have input in the process must know that it is not their statutory duty. She said too that it should be decided how many persons are allowed to witness the procedure, as parties from both sides contributed to the confusion which occurred on March 5 last.
In the circumstances of her judgment, the CJ awarded costs to the applicant in the sum of $500,000.

---

---