Just as the Elections Commission (“the Commission”) was getting its act together, gingerly tiptoeing its way to a decision to recount the votes cast in the general and regional elections held on March 2, Ulita Moore, a candidate for the APNU+AFC in the regional elections, caused to be filed a case in court seeking a variety of declarations and orders against the Commission. The most important order sought is that the recounting of the votes is unconstitutional. The basis of the contention is that the Commission cannot do so on the terms contained in an Aide Memoire signed by the President and Opposition Leader. The court granted an interim injunction that had the effect of putting the recount on hold until the hearing and determination of the case.
The case raised eyebrows. It shattered the Caricom initiative of Prime Minister Mia Mottley of Barbados to recount the votes reflected in an Aide Memoire signed by President Granger and Leader of the Opposition Bharrat Jagdeo. The High Level Team of Caricom experts to supervise the recount arrived in Guyana on Saturday March 14. By Tuesday March 17, the Commission had not yet got its act together. Ulita Moore got ample time to file her case. It raised eyebrows because it sought to block President Granger’s decision to support a recount of the votes. Guyana’s political leaders exercise maximum leadership. When the leader decides on a course, unilaterally or otherwise, it is never challenged by the party members. It is no surprise, therefore, that word immediately went around that President Granger was being challenged by a powerful faction within the APNU+AFC. Even Prime Minister Mia Mottley fell for this line. She said that there were forces that do not want to see the votes recounted. The High Level Team left.
In court on Friday last, Ulita Moore’s lawyer, Mayo Robertson, was joined by a distinguished array of Guyanese and Caribbean-wide attorneys. Among them were Roysdale Forde SC, John Jeremie SC, former Attorney General of Trinidad and Tobago and several juniors and Professor Francis Alexis SC, former Attorney General of Grenada. There is no way that such a high-powered team of expensive lawyers can be mobilized without the financial and political support of the government and/or APNU+AFC, of which President Granger is the head. The conclusion, therefore, is that the united APNU+AFC team is behind Ulita Moore’s effort to prevent the recount of votes.
The Aide Memoire states: “That the High Level Team would operate within the framework of the Constitution, the applicable law, the role of GECOM and the rulings of the Court; That Terms of Reference for the role of the High Level Team must be prepared by the Commission.” While the issue is a matter for the court to determine, it certainly does not appear that the President and Opposition Leader were usurping the function of the Commission. They were in fact deferring to its authority and to those of the Constitution, laws and court decisions.
Does the Commission have the power to order a recount? It certainly does. The oft- mentioned article 162(1)(b) of the Constitution of Guyana provides clear and convincing authority for the Commission to have stopped the Returning Officer (“RO”) for Region 4, Clairmont Mingo, in his tracks. He attempted to ascertain the votes cast for each list, not by Statement of Polls but by spreadsheet. The Commission could have undid what the RO unlawfully did, namely, make two declarations of the votes cast for Region 4 not relying on the Statement of Polls.
Article 162(1)(b) of the Constitution says that the Elections Commission “shall issue such 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.” Once the RO for Region 4 began to use a spreadsheet in ascertaining the votes for each list of candidates in Region 4, in violation of section 84 of the Representation of the People Act, which requires him to use the Statements of Poll, the Commission should have stopped him. The Commission failed to intervene even after he twice made clearly unlawful declaration of the results.
The first unlawful declaration was challenged in court and heard before the Chief Justice. Unfortunately, the role of the Commission and its powers under article 162(1)(b) of the Constitution did not engage the attention of the Chief Justice. Had the case been framed, or the opportunity taken, to engage the Chief Justice on article 162(1)(b) and, pursuant thereto, had she given clear views on the powers of the Commission, clarity may have prevailed and the Commission guided. But I was not in the case, do not fully understand the issues and difficulties, and am now writing with 20/20 vision.
Thus, with or without the Aide Memoire, the Commission has separate and independent powers under the Constitution and under sections 84 and 88 of the Representation of the People Act to order a recount. The applications by several contesting parties for recounts under section 84 were wrongly rejected by the RO. Those can be corrected even at this stage by the Commission.