By the time this article appears on Sunday, the issue of Mr. Keith Lowenfield’s report to GECOM would have been determined. If the CEO has not given his report it is inconceivable that the Commission, or at least the Chair, who has the deciding vote, will continue to tolerate his willful defiance and gross insubordination.

Described as “vulgar” by SN’s editorial yesterday, the CEO’s July 10 request of Justice Claudette Singh, the Chair of GECOM, for clarification of certain issues arising from the CCJ’s decision, cannot be described as anything less than weird mumbo jumbo.

The Chair’s dismissive response of the CEO’s request is an indication of what she thinks of either the requests. But lest the arguments by the CEO be elevated to talking points and lead to the whipping up another round of frenzied propaganda, it is necessary to debunk them as soon as possible.

The CEO’s letter raises three issues for clarification, namely:

(1) Since the Court endorsed the view that GECOM cannot determine credibility [paragraphs 41 and 45 of the judgment], it therefore held that Order 60 of 2020 (the Recount Order) cannot be executed in its entirety and, as a consequence, a final credible count cannot as conceived by the Commission and expressed in the Order cannot be attained.

(2) Section 96 of the Representation of the People Act (ROPA) which the Chair’s letter invoked for the preparation of his report provides that the CEO is to compile his report from those submitted by returning officers, whereas the statements of recount, from which the Chair instructed him to compile his report, were not prepared by returning officers but by GECOM’s secretariat staff. Reference was made to the CCJ’s statement that the Recount Order was in tension with the Constitution and could not create a new election regime. The CEO would like to know which results of the elections could be lawfully declared.

(3) Since the Chair’s letter refers to section 18 of the Election Laws (Amendment) Act and Article 177(2)(b) of the Constitution and since the historic practice is that the elections report is premised on the ascertainment of results by the Chief Election Officer, guidance is sought as to whether the report is premised on one or the other pieces of legislation above.

Can a final credible count be attained (1 above)?
The CCJ did not endorse the view that GECOM cannot determine credibility, that Order 60 cannot be executed in its entirety and that a final count cannot be attained. This is an egregious distortion of what the CCJ said that.

The CCJ determined that after valid and invalid votes are determined during the procedures set out in ROPA, any further alleged irregularities, as claimed by Mr. Harmon, must be addressed by an election petition after the results are declared. This has been twisted by the CEO to allege that a credible count (credible according to his and not the CCJ’s ruling) cannot be attained by the CCJ’s ruling.

The requirement for the CEO to prepare his report from the compilation made by returning officers under section 96 of ROPA (2 above).
The recount process was being undertaken under special circumstances where the role of the secretariat staff of GECOM was substituted for the returning officers. Other procedures also needed to be modified to accommodate the new centralized system for the recount, which is normally done in the electoral districts and presided over by the returning officers.

The Order of Recount made the modifications under section 22(1) of the Election Laws (Amendment) Act which gave GECOM full powers to make the changes by order. The Order of Recount provided that the Statements of Recount prepared by the secretariat can be used by GECOM to declare the final results. It is impossible for the CEO not to know this almost word for word. Why then this weird request?

The statement by the CCJ that the Recount Order cannot create a new election regime was made in rejecting the claim by Justice Reynolds that the Recount Order did just that. The CCJ was referring to the Constitution and not to ROPA. It upheld the Recount Order.

Is the report to be made under section 18 of the Election Laws (Amendment) Act or Article 177(2)(b) of the Constitution (3 above).
If proof were needed that the CEO was grasping for straws to place obstacles in the way of sending in a report, this unintelligible request for clarification demonstrates it. The CEO had wrongly declared his independence as a constitutional officer. Section 18 provides that he is subject to the directions of the Commission. The reference to section 18 is merely to remind him that he is not independent and must comply with the Chair’s request. Article 177(2)(b) deals with election results and so does section 96 and the Recount Order.

The Chair is not required to make any reference to laws in her request. The CEO is presumed to know his duties, responsibilities and what he has to do and under what laws, even if the Chair’s letter is incorrect. Let us hope that by the time this letter appears in print he has complied.

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