Appeal Court rules Lowenfield must calculate election results based on valid votes

Jun 23, 2020 News

In a majority decision, the Court of Appeal yesterday ruled that the Chief Elections Officer (CEO) of the Guyana Elections Commission Keith Lowenfield must determine the results of the election based on a calculation of valid votes.
The order is in keeping with the request outlined in the Notice of Motion filed on behalf of Eslyn David. David had approached the Appeal Court seeking orders in several matters including one which sought to prevent Lowenfield from submitting the recount report to make way for the final declaration of the winner of the 2020 Regional and General Elections.

President of the Appeal Court, Justice Dawn Gregory

The applicant had also asked for the Court’s interpretation on a number of matters including the question of if the phrase “more votes are cast” in Article 177 (2) (b) of the Constitution should be interpreted to mean “more valid and credible votes cast” – an issue which was contemplated by order number 60 for the elections recount.
The 2-1 decision in the case was rendered by the Appeal Court’s President Justice Dawn Gregory, High Court Judge Brassington Reynolds and Appellate Judge Rishi Persaud yesterday.
Justices Gregory and Reynolds both agreed that the Appeal Court has jurisdiction to hear and determine the case under Article 177(4) of the Constitution.
Both Judges alluded to the exclusive jurisdiction of the constitutional provision in Article 177(4), which states, “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.”
Both Judges also held that an interpretation of the words “more votes are cast” in the context of Article 177 (2) (b) of the Constitution of Guyana to be construed to mean more “valid” votes cast.

Justice of Appeal Rishi Persaud

ISSUES TO CONSIDER In granting the wishes of the applicant, Justice Reynolds considered two main issues—whether the Appeal Court has jurisdiction to entertain the Notice of Motion and whether Order Number 60 of 2020 meant that GECOM had to determine the credible count of the elections.
The Judge held that under Article 177 (4) established a separate exclusive jurisdiction to hear matters regarding the qualification of any person for the Office of President or the interpretation of the Constitution on such matters.
He stressed that the provision is peculiar to the Guyana Constitution and is not be found anywhere else in the Commonwealth Region.
In an overview of the applicant’s case, Justice Reynolds said in his view Order 60 of 2020 vests GECOM with powers and responsibilities – the remedies for which some GECOM officials in some respects are akin to those of the High Court and in others the ordinary jurisdiction and in others other akin to that of an elections Court.
“As a necessary consequence, GECOM’s actions and omissions pursuant to order Number 60 of 2020 are impacted by the constitutional and statutory provisions of both the original and new electoral regime,“ he added.
According to the Judge, it is those specific constitutional provisions that the applicant seeks to the Court‘s interpretation of specific words mentioned. Further, Reynolds said that the Court could not grant injunctive reliefs at this time since the Court could not determine whether Lowenfield’s report is valid or not. He noted that the question of jurisdiction is first and foremost.

Justice Brassington Reynolds

Meanwhile, Justice Gregory’s ruling mirrored the views of Justice Reynolds.
According to her, the court would not be venturing out of its jurisdiction in giving an interpretation, Justice Gregory underscored as she placed emphasis on Article 177 (4) of the Constitution.
She said “more votes cast” has to be interpreted within the terms of the Order which she said has sufficient force to impact the interpretation of those words as it relates to the March 02, 2020 elections.
The Judge explained that, “in light of the foregoing words more votes cast have to mean more valid votes.”
DISSENTING VEIW
Justice Persaud in a dissenting judgment noted held that the Notice of Motion filed under Article 177 (4) is without effect as it lacks the necessary enabling provisions.
According to Justice Persaud, the enabling legislation was outlined as a necessity in Article 177(5) (b) a section that follows immediately after the 177(4). Justice Persaud stressed on” its critical and determinative importance” to complete powers of the Court.
“Article 177 (5) (b) provides subject to the provisions of this constitution Parliament may make provision for giving effect to the provision to this title without prejudice…”
He said that “A proper lawful interpretation of Articles 177 (4) and 177 (5) of the Constitution leaves to his mind “an inescapable conclusion that this Court is without jurisdiction to entertain this motion…”
He said that further that the Article cited deals specifically with the validity of an election of a President based the qualification.
The Judge stressed therefore that the questions about the credibility of the elections ought not to be brought to the Court under Article

Attorney-at-Law Kashir Khan

177(4). He noted that the purposely vested such powers with the High Court.
Justice Persaud said in this regard, he finds himself persuaded if not bound to agree that the High Court has the inherent jurisdiction to deal with matters challenging the credibility of the elections.
Describing the motion as unsustainable, he said the questions raised in the motion can only be answered by way of an elections petition at the High Court.
“Only if there is a difficulty with the decision then can the matter then be brought to the Court of Appeal,” the Judge posited.
STAY OF ORDERS
Despite the majority ruling on jurisdiction to hear the substantive case, towards the end of the judgment Justice Gregory granted a request for a stay of the orders by Attorney-at-Law, Kashir Khan, for joined respondents, The Citizenship Initiative (TCI) and Change Guyana (CG).
His applications was briefly opposed by David‘s Attorney, John Jeremie who noted an appeal would not plausible given that the decision of the Appeal Court is final. He noted that the Constitution forbids an appeal.
“The Constitution clearly states that this decision is final,” the lawyer said. Khan’s three day stay of the orders was therefore acceded to by the Court.
The case is one which the applicant sought the Court’s understanding on a number of issues including whether the Constitution the CEO powers to advise the Chairman of the Elections Commission as to the Presidential Candidate that was deemed to be elected based on the issue of more votes cast in favour of that list.
David also wanted to know whether the CEO is required after calculating the total number of valid votes of electors which have been cast for each list of electors on the basis of the votes counted and the information furnished by Returning Officers to ascertain the results of the election.
The applicant questioned too whether the issue of if more votes are cast” in Article 177 (2) (b) of the Constitution should be interpreted to mean “more valid and credible votes cast” –an issue which he says was contemplated by order Number 60 for the elections recount.
“It is therefore submitted that under Article 177(2) (b) of the Constitution of Guyana the CEO is empowered to determine valid votes cast in respect of the election of a President and to tender such advice to the Guyana Elections Commission,” she noted in the application.