Only the court can determine fresh elections – GECOM Chair

Jun 17, 2020 News

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By Mikaila Prince

Chair of the Guyana Elections Commission (GECOM), Justice (ret’d) Claudette Singh, yesterday reminded the country that the Commission is not empowered to determine fresh elections, as such a function lies within the jurisdiction of the High Court.

Singh, in her decision given to the Commission yesterday, referenced Articles 162 and 163 of the Constitution of Guyana, which separate the functions of GECOM and the High Court, respectively in matters of electoral process.
Article 162 stipulates that “the Elections Commission shall have such functions connected with or relating to the registration of electors or the conduct of elections as are conferred upon it by or under this Constitution.”
Meanwhile, Article 163 (1)(a)(i) states that, “… the High Court shall have exclusive jurisdiction to determine any question… either generally or in any particular place, an election has been lawfully conducted or the result thereof has been, or may have been, affected by any unlawful act of omission.”
Throughout the duration of the national recount exercise, which lasted 35 days, the A Partnership for National Unity + Alliance For Change (APNU+AFC) claimed that the March 2 General and Regional Elections were neither fair nor credible. During the recount, the Coalition alleged hundreds of irregularities, including asserting that votes were fraudulently cast for the dead, as well as that Guyanese who were not within the jurisdiction had votes cast in their names.
With the aim of giving validity to the plethora of unsubstantiated claims, the APNU+AFC provided several list of migrant voters to the elections commission for them to probe. Against this, the former Attorney General and executive of the People’s Progressive Party/ Civic (PPP/C), Anil Nandlall, had argued that it was not within GECOM’s jurisdiction to investigate the claims submitted to them by the APNU+AFC, stating that such actions came under the authority of the court.
Nonetheless, Singh had gone ahead with examining the claims and dispatched a list of 207 Guyanese, who APNU+AFC claimed to be out of the jurisdiction on Elections Day, to the Immigration Authority for verification – this was on May 21. One hundred and seventy-two of those names were returned and ‘confirmed’ as being out of the country on elections day by the Deputy Chief Immigration Officer, Ewart Wray.
However, when Kaieteur News published the list comprising of the 172, a total of 26 of them came forward to debunk the Coalition’s claim. They maintained that they were in fact in the country on the day of polls. Kaieteur News interviewed most of these persons, and others whose names were objected to on observation reports. In a series of articles, they presented verifiable information that they were in country. One such person was prominent lawyer, Devindra Kissoon, who was not only in country but served as an observer on Elections Day.
Another list of 310 was submitted on May 30. However, there is no evidence that that list, though submitted to the GECOM Chair, was forwarded to the Department of Immigration.
With respect to a dead voter, the Coalition had presented a death certificate, as initially made in the state newspaper, the Guyana Chronicle. APNU+AFC counting agent, Ganesh Mahipaul, during an exclusive interview told the Chronicle, “From ballot box 210, serial number 257 was registered as 81-year-old Chitnandani Ramdass, but the party has a death certificate confirming that Ramdass died on June 6, 2015.”
The Coalition alleged that serial number 257 (Ramdass) was ticked off on the list indicating that the person voted although he/she was a deceased person. An official copy of the polling station’s Official List of Electors (OLE) commonly known as the pink list, showed however, that the woman’s name was not ticked as voted, which meant that she did not cast her ballot nor did anyone vote in her place.
The question of how Ramdass’ name was on the list despite dying in 2015 may be linked to a fault in the system used to update the National Register of Registrants.
In giving her decision yesterday, the Chair asserted that the Commission does not have the powers of a Court of Law to examine and re-examine witnesses or to procure official documents to determine the truth of the allegations contained therein.
The Chairperson posited that she is of the opinion that some of the allegations are of a serious nature and must be addressed. However, Article 163 (1) (b) of the Constitution confers on the High Court the exclusive jurisdiction to determine the validity of an election.
“In this regard, GECOM could not have thereby clothed itself with jurisdiction to establish itself as a Court of Law to determine credibility of an election when Article 163 (1) stipulates that the High Court shall have exclusive jurisdiction to determine the legality of an election,” the Chair noted.
Singh also noted that the Commission “cannot arrogate onto itself a jurisdiction to annul an election since no specific power was conferred on it under Article 162 (1) (b). A perusal of Articles 162 and 163 of the Constitution shows that the Articles clearly and sharply separate the functions of GECOM and the High Court respectively in matters of electoral process.”
In delivering the landmark decision to the Commission, Justice Singh referenced Article 163(1)(b) then Article 71 (1)(b) of the 1996 Constitution which received judicial consideration in the case of Gladys Petrie v. Attorney General (1968) GLR 504 at 519 Bollers CJ. It stated, the question which the court had to consider under this Article was, “Whether there is some general illegality either affecting the whole election or whether there has been some specific illegality being either an act or an omission which affects the results of an election?”
Parliament has made provision for the determination of questioning the validity of elections by way of The National Assembly (Validity of Elections) Act Chapter 1:04 of which the long title reads:- “An Act to provide for the determination of questions relating to the validity of elections of members of the National Assembly under a system of Proportional Representation.”
The marginal note to Section 3(1) of the Act enacts “Method of questioning the validity of election.” According to Section 57(3) of the Interpretation and General Clauses Act, Chapter 2:01, the marginal note shall be construed and have effect as part of the Act.
Section 3(1) of the Act provides, “Any question referred to Article 163(1) (a), (b) and (c) of the Constitution may, in respect of an election referred to in Article 60(2) of the Constitution and with a view of securing appropriate remedial orders, be referred to the court and shall thereupon be determined by it in accordance with this Act and every such reference shall be by petition, hereafter referred to as an election petition.”
In light of the foregoing and in keeping with Order No. 60 of 2020 and its addendum dated 29th May, 2020, Singh requested for the Chief Elections Officer (CEO), Keith Lowenfield, to prepare and submit to the Commission a final report to ascertain the results of the elections under Section 96 of the Representation of the People Act. The CEO is expected to present the report to the Commission by 3 pm tomorrow.

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