Can GECOM investigate complaints of irregularities that allegedly occurred in elections after results have been declared? It cannot. Can GECOM investigate complaints of irregularities occurring in elections while the elections are going on and before results have been declared? It can, where possible. In the latter case, where one or more of its employees commit electoral mistakes or malpractices, or irregularities otherwise occur, GECOM has a duty to take steps that are authorized by law. It can investigate its employees and, if liable, can replace them. It can investigate a systems breakdown affecting one or more areas which cannot be rectified in time before the conclusion of the elections. If this happens, GECOM has the power to cancel the elections in that or those areas and hold them at a later date.
The issue of investigation by GECOM in relation to the 2020 elections first occurred during the process of recount. It will be recalled that the recount took place after the conclusion of the voting and counting. During the recount, it was alleged by APNU+AFC that 90,707 votes and 41 ballot boxes were affected by irregularities. The objections were not entertained by the Caricom Team conducting the recount, but they were recorded in Observation Reports. Recount results were officially transmitted and eventually adopted in a report by the Chief Election Officer. Calls were made on GECOM during the recount to carry out investigations. But apart from submitting 1,261 names for immigration checks, GECOM declined to do anything further. There was no evidence at that or any other time that deceased or migrated persons who were allegedly on the list had voted. In fact, some of the 1,261 persons who were alleged to have migrated, revealed themselves to be in Guyana.
The law relating to challenging elections are absolutely clear and widely known. After nomination day irregularities are required to be challenged by way of election petitions after the elections. Two well-known cases, Petrie v Chief Election Officer and Singh v Chief Election Officer, decided in the 1960s, have settled the law and since then those cases have been upheld more than once. Now that the election petition filed against the 2020 elections is floundering, calls are being renewed for GECOM to conduct investigations.
Responding to a request by Opposition nominated members of GECOM to conduct an investigation into the validity of votes and missing documents at the 2020 elections, Justice Singh said that a distinction must be made between a review of GECOM’s processes in conducting an election to ascertain if there are weaknesses and investigating what actually transpired during an election to determine its validity. Justice Singh said that “GECOM is not a court of law and therefore has no authority to determine whether an election was lawfully conducted, and no such power was conferred on it under Article 162 (1) (b)… The Commission does not have, and cannot clothe itself, with the powers of a Court of Law to examine and re-examine witnesses or to procure official documents to determine the truth of the allegations contained therein. Any such question can only be determined by way of an election petition filed in the High Court.” Undeterred, Opposition nominated members of GECOM tabled another request about a week ago.
Another reason that prohibits GECOM from investigating allegations of alleged electoral malpractices or irregularities, is that GECOM is a “creature of statute.” The phrase refers to a legal entity that has been established by statute. Quite apart from GECOM not being a court of law, as articulated by Justice Singh, GECOM’s powers are specifically restricted by the Constitution that has created it, and by other legislation such as the Representation of the People Act, the Election Laws (Amendment) Act and others, which together provide GECOM’s statutory framework. GECOM has to confine its activities within the four walls of these statutes.
GECOM cannot interpret the ‘spirit’ of the legislation and conclude that such ‘spirit’ means that it can do certain things which are not specifically provided for. GECOM cannot follow ‘best practices’ recommended by experts or followed by other election bodies. GECOM cannot adopt powers which it believes are ‘reasonable’ or ‘necessary’ to establish ‘fairness.’ GECOM cannot apply powers which it believes are implied in applicable legislation. GECOM cannot carry out post-election investigations unless specifically provided for in its statutory framework. GECOM cannot carry out investigations because the electoral list is “bloated.”
The most recent motion tabled by Commissioner Corbin a week ago seeks to have GECOM “commission its own independent review to gain a better understanding of the bases for the aforementioned allegations and occurrences and to consider if there are existing or potential weaknesses in the processes employed by GECOM for the conduct of elections.” An “independent review” means the commission of an investigation by independent, external, persons or agencies. The independent review is of allegations and occurrences in order to discover a better understanding of their “bases.” This means that the “commission” will have to make a finding as to the truth or falsity of the “allegations and occurrences.” The question is, where is the law that permits these activities? If none, such they would be ultra vires and unlawful.