GECOM Chair asks Court to throw out case against Lowenfield’s report

Jun 20, 2020 News

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By Shikema Dey

“The court should not be asked to act in vain. Even if the court grants the orders sought, what is the next position? Can this court direct GECOM what to decide? Can this court order GECOM to hold a fresh election? Are these orders even sought? The short answer is no since this is not an election court,” – GECOM Chair Claudette Singh.

Chairman of the Guyana Elections Commission (GECOM) Ret’d Justice Claudette Singh has requested that the Appellate Court throw out the application filed by Sophia resident, Eslyn David, seeking to block the Chief Elections Officer (CEO) Keith Lowenfield from submitting his final report on the results of the recount for a declaration of the March 2, 2020 General and Regional Elections.Justice Singh in her affidavit, prepared by Attorney-at-Law, Kim Kyte-Thomas argued that “only a competent Court with jurisdiction” can listen to allegations about an election through an “election petition”, “not GECOM and certainly not the Chief Election Officer.”
“If GECOM is to embark on this credibility exercise,” the GECOM Chair queried in her response, “what basis should be used to determine the issues of validity and credibility? The letters from one party? The opinion of the CEO? Can GECOM just use the CEO’s opinion without giving interested parties an opportunity to be heard? Is GECOM to hold court and take evidence? The Applicant is asking GECOM to embark on a trial.”
David is represented in her Motion by Trinidadian attorneys-at-law John Jeremie S.C and Keith Scotland. along with local attorneys Roysdale Forde and Mayo Robertson. It should be noted that Forde and Robertson represented Ulita Moore in her Application which sought to block the National Recount – Forde, like Moore, was also a candidate for David Granger’s list in this year’s elections.
David, in her Application which listed the GECOM Chair, CEO and Attorney General, Basil Williams as respondents, has sought from the Appeal Court a declaration that GECOM failed to act in accordance with the Recount Order, in that they failed to determine a final credible count of the result of the March 2, 2020 Elections, along with an interpretation of the words “more votes are cast” in Article 177 (2) (b) of the Constitution, and an order restraining the CEO from complying with the instructions of the Chair to prepare his final report without determining the credibility of the General and Regional Elections.
Her Application was filed pursuant to Article 177 (4) of the Constitution which provides that “The Court of Appeal shall have exclusive jurisdiction to hear and determine any question as to the validity of an election of a President in so far as the question depends upon the qualification of any person for election or the interpretation of this Constitution; and any decision of that Court under this paragraph shall be final.”
But according to Justice Singh, the duty of the court is not to re-write the constitution but to “interpret what is already stated in the constitution clearly.”
Singh argued that Article 177 speaks to a “President” and stated “that the electoral process has not reached this stage.”
She pointed to Article 133(1) which vests the Court of Appeal to hear appeals from the High Court on questions of constitutional interpretation: “Hence, the first two orders sought, seeking a Declaration that GECOM failed to act in accordance with its order secondly an interpretation of the words ‘more votes are cast’ and the affidavit filed in support do not touch and concern the qualification of a person elected President.”
“It is respectfully submitted that the application is misconceived and ought to be struck out forth-with,” Singh said.
Justice Singh continued that, in any event, the Order sought in David’s Application amounts to the interpretation of an Order and not the Constitution.
“It is further submitted,” she stated, “that the relief sought in paragraph (a) of the Notice of Motion cannot be determined by this court but instead must be pursued by an Election Petition.”
She pointed to Article 163 (1) (b) of the Constitution which gives the High Court the “exclusive jurisdiction” to determine the validity of an election.
In this regard, she said, GECOM could not cloth 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.
Therefore, “The Commission cannot arrogate onto itself a jurisdiction to determine the credibility an election or any unlawful act since no specific power was conferred on it under Article 162 (1) (b) to so do,” the GECOM Chair stated.
Justice Singh in her affidavit offered that any such challenge “cannot be entertained at this time on the basis that it is premature.”
She argued that “Any challenge to the validity of an election and any dispute or claim of any irregularities or illegalities in relation to an election can only lawfully form the basis of an election petition after the result of the election has been made known.”
For these reasons, Justice Singh concluded that “The Notice of Motion should be rejected by this Honourable Court and the Commission should be permitted to execute its constitutional role and functions to bring finality to the 2020 Elections.”

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