The law does not give powers to the CEO to determine anything

Jul 02, 2020 Letters

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DEAR EDITOR,

Kaieteur news reported on June 30, 2020 in an article captioned, Granger agrees with Lowenfield’s report – hopes for declaration this weekend – resents all threats of sanctions. By now most are aware that Lowenfield took it upon himself to alter the Statements of Recounts submitted by the Returning Officers, which statements stated the number of valid votes obtained by the political parties and which statements were published for the public consumption as required by law. I addressed this in a letter in the Kaieteur News captioned, “There is no loophole that allows the Chief Elections Officer to make valid votes invalid” and dated June 29, 2020.
He claims that the Court of Appeal decisions that “more valid votes” gave him the right to adjust the statements and substitute what in his sole discretion he determines to be valid votes.
First it is recognized that the Court of Appeal did not and cannot give such authority to him. Also, in doing so he refused to comply with a written direction to him from the Chairman of the Commission and falsely claims that the Elections Commission’s function is to provide “policy” and “guidance to the Chief Elections Officer for the implementation of the Secretariat.” He also said that his is a constitutional position which was another untruth as he is simply an employee of the Commission. We need to examine these claims by looking at what the laws say. So as to have no doubt I am copying the Sections in the constitution and I am sure the average persons unlike some seasoned politicians can understand.
162. (1) 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 or, subject thereto, any Act of Parliament; and, subject to the provisions of this Constitution, the Commission ––
(a) shall exercise general direction and supervision over the registration of electors and the administrative conduct of all elections of members of the National Assembly; and
(b) shall issue such instructions and take such action as appear to it necessary or expedient to ensure impartiality, fairness and compliance with the provisions of this Constitution or of any Act of Parliament on the part of persons exercising powers or performing duties connected with or relating to the matters aforesaid.
One can see the importance of this section which gives the Commission the right to issue instructions… to ensure impartiality, fairness and compliance with the Constitution ….”
To reinforce this let’s look at “Elections Law (Amendment) Act 2000”.
Section 17 States, “17. (1) There shall be a Permanent Secretariat to the Commission to ensure institutional memory and capacity and the Commission shall be responsible for the efficient functioning of the Secretariat”. Section 18 states, “The Chief Elections Officer and the Commissioner of Registration shall notwithstanding anything in any written law be subject to the direction and control of the Commission”.
Can anyone doubt the intention of law to ensure that we do not have a runaway employee of the commission doing what he wants even to disobey lawful orders of the Commission. Now if there is still doubt maybe we should examine order 60 of 2020. Section 9 states, “The tabulation of Statement of Recount… shall be input into a matrix …. information from this tabulation should be broadcast periodically”
Section 11 says that the signed Matrix produced shall be transmitted to the CEO with copies given to all including the chair and made available to the public. Section 12 states “ the matrices for the 10 (10) Electoral Districts shall then be tabulated by the CEO and shall be submitted in a report, together with a summary of the observation report for each district to the Commission”
Section 14 states “The Commission after deliberating on the report at paragraph 11 (note not the report of the CEO but the matrices of the districts) shall determine whether it should request the CEO to use data compiled in accordance with paragraph 11 as the basis for submission of a report under Section 96 of The representation of Peoples Act Cap 1:03.
Section 15 adds support and makes the powers of the Commission definitive without a doubt. It States, “For the avoidance of any doubt, the CEO and every person appointed or authorized to perform any act or function by virtue of this order, are and shall remain subject to the general supervisory power of the Commission.
I am of the opinion that that as of Section 14 which says “the Commission shall after deliberating determine whether it should request the CEO” means that it does not necessarily have to but could use the matrices submitted to determine the elections. In any event it is clear that the Commission can instruct the CEO.
Like in any organization disobeying a lawful order that derives from the basic function of that organisation creates the basis for immediate dismissal.
Now so there can be no doubt the Representation of People Act says that the Returning officer shall and as stated in Section 89 (1) (e) “publicly declare the final result of the counting” and 89 (1) (f) states, “deliver to the CEO a return in writing in respect of the final counting in form 24 which shall set out the number of (i) valid votes cast for each list of candidates as aforesaid,” it continues to list spoilt, tendered ballots, etc.
Note Number of Valid votes cast.
Now it is clear that the law does not give to the CEO powers to determine anything. His job is to tabulate but who has the authority so we go to the Constitution and Section
163. (1) States subject to the provisions of this article, the High Court shall have exclusive jurisdiction to determine any question ––

(b) whether :-
(i) 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 or omission;
I tried to put here the sections of the relevant laws to make it easy for us to understand the issues that we are facing and deliberating on at this point I time.
It is now in the hands of the Chairman to follow the laws of this country. Failure to declare which party everyone locally and internationally recognize to be the victor in this election would be an atrocity ad would sink Guyana for a long time to come.

Rajendra Bisessar

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