Elections anomalies evidence is admissible, irrespective of how it was obtained

May 27, 2020 Letters

Dear Editor,

I write with reference to an article published in the May 24th Sunday Edition of your paper captioned, “It’s court’s jurisdiction to probe election irregularities, not GECOM – Nandlall”.
I respectfully contend that it is for the Guyana Elections Commission (GECOM) to resolve the irregularities, discrepancies and anomalies contained in the Observations Reports. Paragraph 16 of GECOM’s Order provides that the recitals shall form part of the Order.
The last recital of the Order provides that the conduct of the recount process is for the purpose of “…the reconciliation of the ballots issued with the ballots cast, destroyed, spoiled, stamped, and as deemed necessary, their counterfoils/ stubs; authenticity of the ballots and the number of voters listed and crossed out as having voted; the number of votes cast without ID cards; the number of proxies issued and the number utilized; statistical anomalies; occurrences recorded in the Poll Book”.
These provisions empower GECOM to not only count the ballots but also to examine irregularities, discrepancies and anomalies in order to make a determination of the credibility or lack thereof, of the recount process.
Further, paragraph 6 of the Order provides for the use of the Observations Report Form (ORFs) to record any observation outside of the ballot box checklist; and under paragraph 12 the Chief Elections Officer (CEO), after tabulating the matrices of all electoral districts, submits a report which includes the ORFs and the matrices of the ballot count for each district to the Commission.
This shows a clear dichotomy between the ballot count and observations made during the recount process, confirming that it is not about the ballot count alone. Additionally, paragraph 14 of the Order makes it pellucid that it is for the Commission to resolve any irregularity, discrepancy and anomaly occurring in the recount process as revealed in the report.
According to paragraph 1 (b) of the Order, the role of the Commission is to serve as the final arbiter of issues not resolved at the lower levels in the established procedure; and paragraph 1 (f) provides it shall determine and declare the final results of the Regional and General Elections 2020.
What is evinced upon a proper apprehension of the provisions in the Order for this special recount process is that GECOM exercises jurisdiction over it. Therefore, it is an erroneous statement by Nandlall when he asserts, “They would be violating the very order GECOM published and took to be governed by to conduct the recount”.
Moreover, GECOM is well equipped in that its Chair is eminently qualified to adjudicate in these matters. She could use her wealth of experience in determining issues of credibility by assessing weight, veracity and consistency of any evidence before the Commission and can call on the General Registrar’s Office for births and deaths records and the Immigration Department for immigration records to assist in the discharge of the Commission’s responsibilities under the rules in the Order governing the recount process.
The Chair is well qualified within the characteristics outlined by His Excellency President David Granger in his letter, dated 2017.03.14, to the Leader of the Opposition that the GECOM Chair should satisfy certain characteristics including, “ That person is deemed to have wide electoral knowledge, capable of handling electoral matters because he or she is qualified to exercise unlimited jurisdiction in civil matters; that person will discharge his or her functions without fear or favour, that is he or she will not allow any person or organization to influence him or her to compromise his or her neutrality and that person will discharge his or her functions neutrally, between the two opposing parties, as he or she would have done in Court between two opposing litigants”.
The Chair of GECOM would be familiar with the time-hallowed common law principle that evidence is admissible once relevant, irrespective of how it was obtained. In conclusion once GECOM is acting in consonance with the foregoing provisions of its gazetted order, Nandlall’s contention that it is “now expanding the scope of this recounting exercise far outside its parameters and that it is wrong; it is unlawful”, must be rejected.
Respectfully,

Basil Williams SC
Attorney General and Minister of Legal Affairs

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