The valid votes have already been determined

Jun 23, 2020 Features / Columnists, Peeping Tom

---

The Court of Appeal has ruled by a 2-1 majority that it has the jurisdiction to interpret the Constitution in relation to the election of a President, under Article 177(4) of the Constitution. This column respectfully does not agree that the Court has any such jurisdiction.
Article 177(4) 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 that question depends on the qualification of any person for election or the interpretation of this Constitution…”
The article is self-explanatory and requires no legal training for its comprehension. The Court of Appeal has the jurisdiction to hear and determine questions as to the validity of an election of a President. Let us stop there. If there is no election of a President, it means that there is no jurisdiction.
The second part of the article qualifies what sort of questions can be determined by the Court of Appeal should there be “an election of a President.” Those questions relate to the qualifications of the President or the interpretation of the Constitution. But a condition precedent is set by the first part of Article 177 (4) and that condition is that the President must first be elected before jurisdiction can be invoked
The Court in my humble estimation has erred in assuming that it has jurisdiction. I respectfully submit that if this decision is appealed to Caribbean Court of Justice it will be overturned.
The Court of Appeal decision, however, does not prevent the Guyana Elections Commission from moving ahead with the final declaration of the results by its Chairperson. The Court of Appeal has only ordered that when the Constitution at Article 171(2)(b) makes reference to “ if more votes are cast:, it means : “if more valid votes are cast”.
No one should have any problem with this. It is clearly understood that when that Article speaks to votes cast that it could only mean valid votes cast. Elections in Guyana have always be determined by valid votes.
A valid vote is a vote which is cast in an election which bears the official mark and where the intention of the voter (in terms of who he or she is voting for) is clear. This applies also for the recount of votes cast and is provided for in the law.
The valid votes for the 2nd March have already been determined. It was first determined by the Presiding Officer at the polling stations when the votes were counted. This is accordance with the law. The Representation of the People Act at Section 83 (4) states: “The decision of the presiding officer as to the validity or otherwise of a ballot paper shall be final, subject to review by the returning officer.”
The results of the Recount mimicked the processes used at the place of poll. Votes are deemed valid in a recount so long as they bear the official marks and are marked for a list of candidates. This is provided for under Section 87 of the Representation of the People Act. The results of the recount as certified on the Statements of Recount (SORs) and as tabulated by the Returning Officers constitute the record of the valid votes cast. The Chief Elections Officer has already submitted matrices of the valid votes cast to the Commission. He is thus obligated to declare the Recount results as the valid votes, as provided for in the law.
The Chief Elections Officer cannot contradict his report on the tabulation of the results of recount. He does not have the authority to pronounce on the validity of votes. That can only be done by the High Court via an election petition. The CEO has to use the valid votes as determined by the Recount.
There is no injunction preventing the CEO from submitting his report and for the Chairperson to declare the results of the elections. But we know in Guyana that the CEO will face his own challenges in so doing.
The CEO is an officer of GECOM. Section 18 of The Elections Laws (Amendment) Act 2000 provides that, The Chief Election Officer is subject to the direction and control of the Commission and at Section 19 GECOM has the authority to issue directions and exercise supervision to any officer of GECOM concerning the conduct of elections.
The Commission therefore will have to make a decision should the CEO fail to submit a report on the basis that he cannot determine the number of valid votes cast. Since he does not have the authority to invalidate any votes, any failure to submit a report in accordance with the results of the Recount will amount to statutory negligence and would subject him to sanction by the Commission and the law.

(The views expressed in this article are those of the author and do not necessarily reflect the opinions of this newspaper.)

---

---