According to media reports, if accurate, the election petition to be filed on behalf of APNU+AFC alleges that the elections were fraudulent and seeks an order that new elections be held or that Mr. David Granger be sworn in as President, presumably on the results delivered by the fraudulent elections.
This manifestation of legal tongue-twisting derives from the inadmissible, or so far unadmitted, undercurrent of electoral politics in Guyana, namely, the struggle for ethnic dominance. The reason why the PNCR has never come to terms with its past history of rigged elections from 1968 to 1985 is that it never had any intention of ever desisting from seeking ethnic dominance through election rigging. Despite international opprobrium on this occasion, and the trauma caused to Guyanese, the APNU+AFC was prepared to establish a race-based dictatorship, as it did in the past. It will attempt to do so again if and when it gets another opportunity because it is trapped in the vortex of Guyana’s ethnic politics. The reason it has to perpetually lie to its supporters that it was robbed of electoral victory by elections rigging by the malevolent PPP, that ethnic other, whether it is in Government or in the Opposition, is to maintain ethnic loyalty. If APNU+AFC advises their supporters that it can never win elections because it never achieve 51 percent of the vote, except by a fluke as in 2020, APNU+AFC’s raison d’etre will be severely undermined. It must keep hope alive.
That is why APNU has never conceded that it lost elections, even though historically its share of the vote has never exceeded 42 percent except when it coalesced with the AFC in 2015 and 2020, the latter results of 47 percent being suspiciously large having regard to the AFC’s electoral collapse, demonstrated in the local government elections last year. The elections APNU lost since 1992, which includes 1997, 2001, 2006 and 2020, have all been claimed to be rigged. Court cases were filed after most of them.
The jurisdiction of an elections court to hear elections petitions is set out in Article 163 of the Constitution. The court has power to consider (a) whether generally or in a particular place the elections have been lawfully conducted; or (b) whether the results of the elections have been or may have been affected by an unlawful act or omission.
The cases heard during the recount process have given us a more or less accurate idea of the issues which are likely to be raised. These include the constitutionality of Order 60 which provided for the recount, the lawfulness of the returns of the returning officers, including that of Clairmont Mingo for District 4 and the authority of the CEO of GECOM to act as a “lone ranger.” While the CCJ has not directly ruled on these matters, most of them have already engaged the Court’s attention.
In relation to whether the elections have been or may have been affected by an unlawful act or omission, the issue likely to be raised are the same raised by APNU+AFC at the recount. Thousands of names of voters were objected to on the ground that they were dead or out of the country. This will pose a logistical nightmare for lawyers attempting to prove that a dead person voted or a voter was out of the country on election day.
It can be proved that a person named, say, “Tomdick Harrylall” is out of the country, but a “Tomdick Harrylall” is proved to have voted. But the evidence has to go a step further to prove that the “Tomdick Harrylall” who is out of the country and the “Tomdick Harrylall” who was voted for are one and the same person. It is the same for a person who has died. The “Tomdick Harrylall” on the death certificate must be proved to be the “Tomdick Harrylall” who has voted or been voted for. To overturn the elections on these grounds, 15,000 fraudulent votes have to be proved. Mr. Khemraj Ramjattan, forgetting his law, no doubt because of the heavy burdens of Government, including clearly conceding victory to his staff and then having to concoct a lame excuse for walking the concession back, claims that the PPP has to produce the voters. In the first week of the course on Law of Evidence, students learn the popular maxim – “he who asserts must prove.”
At the time when these election petitions are likely to be filed, the Police has launched criminal investigations against Clairmont Mingo and his assistants and other GECOM staff in relation to the alleged falsification of the election results. And the DPP has taken over a private criminal case filed against Keith Lowenfield, the CEO of GECOM. For the first time since the rigging of elections in 1968, criminal investigations are being undertaken. The importance of these investigations cannot be over emphasized. 2020 has proven that despite the democratic opening in 1992, there is an ever-present danger in Guyana of elections rigging, once the PNCR/APNU is in office, as can happen again. It is therefore vital that any person against whom there is evidence of a crime must be brought to justice. Election rigging must be extirpated and a political solution sought.