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Doomed to fail

Jul 31, 2020 Features / Columnists, Peeping Tom

Yesterday, the Court of Appeal of Guyana ruled in the appeal to the recent decision of the Chief Justice. Yesterday’s ruling paves the way for the Guyana Elections Commission to move ahead in declaring the results of the elections.
GECOM has called a meeting for Sunday. But it is not clear whether given the pronouncements in yesterday’s decision, which has been stayed for one day, if GECOM will await the outcome of any appeal of yesterday’s decision to Guyana’s apex court, the Caribbean Court of Justice(CCJ).
The last time the CCJ ruled on an election matter, some supporters of the APNU+AFC urged the Court to stay out of Guyana’s affairs. They falsely contended that the Court of Appeal is Guyana’s highest court. It is not clear now why they should be looking towards the CCJ to overturn yesterday’s judgment.
The Court of Appeal yesterday has reaffirmed what was said and known before in relation to any declaration to be made. First, it confirmed that the Order which facilitated the recount was never invalidated by the CCJ. It stated that the Recount order forms part of the electoral laws of the country and it can only be invalidated by an elections petition.
The consequence of this ruling is that challenges to the Recount order can no longer be used as a ruse by the APNU+AFC to force GECOM to discard the recount results. Nor can the APNU+AFC claim that the recount results should be discarded in favour of Mingo’s numbers.
Second, the Court agreed with the ruling of the Chief Justice that the Chief Elections Officer is not a Lone Ranger. He is an employee of GECOM and is bound to take instructions from GECOM. He is obliged to comply with the directives of the Commission.
One of the judges was emphatic in saying that GECOM was acting within its powers to use the results of the recount and to instruct the CEO to submit his report as per the recount results. Another said that the directions issued to the CEO by GECOM must be treated as lawful and he must comply.
The implication of this is that the gamesmanship which was being employed by the CEO must cease forthwith. The rug has been pulled from under him. He has to comply with the instructions given to him.
Third, the Court of Appeal was clear that the basis on any lawful declaration now has to be the recount results. The Court held that the votes already counted cannot be invalidated and must be used to declare the results.
The implication of this ruling is that the CEO cannot use his discretion. He must prepare and present his results based on the recount. The Court was unambiguous in its conclusion that the recount numbers must form the basis of the recount.
It is theoretically possible that the unanimous decision of the Court of Appeal may be appealed to the CCJ. Even though the Court is due to go in its summer recess next week, its rules allow it to be recalled for urgent matters.
If the matter reaches the CCJ, it is not likely to be entertained. In the very first appeal, which the CCJ heard from the Court of Appeal in Guyana, the CCJ held that while it has jurisdiction to grant leave to appeal, it would decline to do so where there is no real prospect of success. It quoted Lord Keith in Farrington v R (1996) 48 WIR 16 (PC who stated:
“For the avoidance of doubt… their Lordships consider that it would be inappropriate to grant special leave to appeal as a poor person where it is plain beyond rational argument that the appeal is doomed to fail.”
The CCJ in my humble estimation is likely to refuse to entertain the appeal on the aforesaid grounds that the appeal is doomed to fail. As is the APNU+AFC’s desperate attempt to hang on to power.

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

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