President Granger’s undertaking to accept the declaration of the election results by GECOM leaves Guyana with the hopeful expectation that the election ‘torment’ will soon be over. The request made by the Chair of GECOM to the Chief Election Officer (CEO) on June 16 to deliver a report under section 96 of the Representation of the People Act (ROPA) based on the recount results, indicates that the Chair is also ready, and most likely anxious, for GECOM to make the declaration. The decision in the case before the CCJ (Jagdeo and Ali v David and others) will have an impact on the issue of the declaration.
The four major issues before the CCJ were:
(1) whether the CCJ had jurisdiction to hear the appeal against a decision of the Court of Appeal, purportedly made under article 177(4) of the Constitution, which provides that decisions under that article shall be final;
(2) if so, whether the Court of Appeal had jurisdiction to rule that “more votes” under article 177(2)(b) means “more ‘valid’ votes.” The CCJ was also asked to rule on two consequential Issues, namely:
(3) that the CEO’s letter to the Chair of June 23 reducing the votes cast by 115,000 and rearranging the remainder to show a victory for APNU+AFC is null and void and of no effect; and,
(4) to declare what are the lawful election results.
The CCJ will give its decision in the case next Wednesday. It can rule in the following ways:
(1) That it has no jurisdiction to hear the appeal. This would be the end of the matter as far as these court proceedings are concerned;
(2) That it has jurisdiction to hear the appeal but that the Court of Appeal’s decision was correct, in which case this is also the end of the matter.
(3) The CCJ can decide that it has jurisdiction to hear the appeal and set aside the ruling of the Court of Appeal. If it goes no further (although it is difficult to see how it could leave the CEO’s letter of June 23 to stand), then the Chair can use the power of the Commission under article 162(1)(b) of the Constitution, set out below, to ensure a declaration based on the recount results.
(4) The CCJ could set aside the letter and go even further and define what are the lawful results of the elections. This would enable a declaration to be made based on the recount results.
No matter how the CCJ rules, it would then be up to the Chair of GECOM to enforce her letter to the CEO of June 16 in which she instructed him to issue a report under section 96 of the Representation of the People Act (ROPA) based on the recount results. The burden would be lighter if the CCJ rules in favour of (3) and (4) above. Like in 2015 when the Commission ordered Mr. Gocool Boodhoo, the then CEO, to correct the declaration he had produced to the Commission, Mr. Lownefield can be summoned and ordered to produce a declaration in accordance with the recount results as ordered in the Chair’s letter of June 13. If he insists on reporting the results on figures manufactured by him and not on the recount figures, the Commission can proceed to issue the declaration under its constitutional powers.
Article 162(1)(b) of the Constitution provides as follows: “The Commission…shall issue instructions and take such action as appear to it necessary and 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.” The Commission, notionally acting under these same powers, instructed Mr. Gocool Boodhoo, the CEO in 2015, to change his report which had the PPP/C incorrectly winning by one seat. Mr. Lowenfield now has the APNU+AFC incorrectly winning by one seat.
Whatever the ruling, the Commission to rely on its powers under the Constitution to give effect to the recount results, if the CEO proves to be recalcitrant. In a widely seen interviews in 2015 and 2019 the CEO said that impersonation at elections is impossible and that he is constitutionally bound to obey the instructions of the Commission. In blatant contradiction of his own declarations, he has unilaterally and illegally cast aside 115,000 votes, and recently declared that he is a constitutional office holder and his duties under the Constitution take precedence over instructions from the Commission. A decision by the CCJ based on (1) or (2) above is likely to see further litigation because it will give licence to the CEO to continue to insist on manipulating the results.
It appears unlikely that foreign observers and governments will wait any longer for a lawful declaration of results. Secretary of State Pompeo’s statement said: “It is long past due for a transition of power…They should get on with it.” Actions by the CEO or any other agency which delays a declaration of lawful results, or by their actions instigate further litigation, could invoke sanctions sooner rather than later. APNU+AFC does not seem unduly bothered.