It was reported on June 15 that the Chair of GECOM, Justice Claudette Singh, opposed an investigation by GECOM into the elections proposed by Opposition nominated members. Justice Singh made a distinction between a review of GECOM’s processes in effectively conducting an election and an investigation into what transpired during a particular election. The Chair arued that GECOM may look into the effectiveness of the system to ensure that there are no weaknesses. However, GECOM cannot investigate the truth of particular claims, leading potentially to a determination as to the validity of the elections. This is not the function of GECOM but of a court of law under article 163 of the Constitution. This article empowers the Court to determine whether an “election has been lawfully conducted” or whether the result has been affected by “any unlawful act or omission.”
Shortly after the elections were concluded, an election petition was filed by Monica Thomas and Brennan Nurse alleging that the elections were unlawfully conducted and/or that the results (if lawfully conducted) were affected or might have been affected by unlawful acts or omissions. Among the major contention is that deceased persons and persons residing overseas unlawfully voted in the elections. The Chief Justice dismissed the petition on technical grounds and the petitioners appealed to the Court of Appeal. There were preliminary arguments by the Attorney General in the Court of Appeal to the effect that there is no appeal from an election petition. The Court of Appeal dismissed the argument and the matter is now engaging the attention of the CCJ.
On June 16 it was announced that the President will name the members of a Commission of Inquiry into the elections, who were named on June 21. The terms of reference have not yet been announced. No doubt, in determining the terms of reference of the COI the President may well take into consideration the issues raised in the election petition in order to ensure that the COI does not either impinge on the jurisdiction of the Court or, if the Court proceedings come to an end that the COI is not used to litigate issues which are better dealt with in a Court of law. In any event, it is doubtful that the COI would allow itself to be snared into transforming itself into an election petition court to litigate issues more properly dealt with by a court of law.
Opposition nominated member of GECOM have now filed another motion for GECOM to have “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.” As reported by SN on June 25, the motion asserts that allegations of voter impersonation may have been anchored in the excess number of entries recorded in the electoral roll. The motion clamed that during the Recount Process numerous documents of significance could not be accounted for, missing documents rendered impossible the validation of associated ballots and many other untoward incidents were reported.
It is not known whether the Opposition nominated members of GECOM are of the view that a reintroduction of the motion, no doubt differently worded, would elicit a reversal of the position of Justice Singh, the Chair. On the contrary, it appears to be designed to strengthen the view of the Chair. To “gain a better understanding of the of the bases” for the allegations and occurrences” and to consider if there are existing or potential weaknesses in GECOM’s systems, of necessity requires an investigation into the validity of the claims of fraudulent voting. The motion, in its entirety, drips with insinuations of fraudulent voting. If Justice Singh seeks to be consistent, her position would be the same.
At a press conference held during last week, the Opposition parties supported the call for an internal investigation to be conducted by GECOM and for the COI not to interfere with the work of the election court. The establishment of the COI was criticized on the ground that its work and conclusions would be of an inferior quality to the Court because it admits hearsay evidence. There are, of course, other political criticisms.
We do not yet know the outcome of the court proceedings. They are still at a preliminary stage. If the CCJ rules that an appeal is available to the petitioners, the matter has to return to the Court of Appeal for hearing on the Chief Justice’s dismissal of the petition on procedural grounds. Whatever the Court of Appeal rules, the decision is likely to be appealed to the CCJ. The hearing of the substantive issues of the election petition depends on the petitioners winning this round of the procedural challenges and, only if they do, then will the hearing on the substantive matters take place. These relate to tens of thousands of names on a voters’ list, alleged to be dead and migrated people who, it is claimed, have been voted for, among other assertions. The Courts will take a while, putting it mildly, to conclude their hearings. The COI will probably have long finished its inquiry.