An application by those charged with electoral fraud, including two Opposition members to stay the criminal proceedings against them until they ask the High Court to determine whether there has been a breach of the fundamental rights provisions, has been rejected.
This is according to the lead prosecutor King’s Counsel Darshan Ramdhani.
Guyana Elections Commission (GECOM) clerks, Denise Babb-Cummings and Michelle Miller and GECOM Elections Officer Shefern February and its Information Technology Officer Enrique Livan along with Opposition members Volda Lawrence and Carol Smith-Joseph, were charged back in 2020, for attempting to rig the March 2020 election in favour of the APNU/AFC.
They appeared before Chief Magistrate Ann McLennan at the Georgetown Magistrates’ Court on Monday where the amended charges were read to them which stated that between March 2 and August 2, 2020, at Georgetown, they conspired with former GECOM Chief Elections Officer (CEO), Keith Lowenfield and Region Four (Demerara-Mahaica) Returning Officer (RO), Clairmont Mingo to defraud the electors of Guyana by declaring a false account of votes cast.
Each of the six defendants pleaded not guilty.
Miller, on the other hand, was charged separately with conspiracy to defraud. It is alleged that between March 3 and 5, 2020, at High and Hadfield Streets, Georgetown, together and with others, with intent to defraud the people of Guyana, she did not use the figures from the Statements of Poll (SoPs) for ascertaining the figures to make the declaration of the results for the said District Four, thereby resulting in a false declaration being made for the said District.
She denied the allegation. They were all granted bail. More than half of the 31 charges are being dealt with by Chief Magistrate Ann McLennan.
Late last year, lawyer for the defendants, Nigel Hughes had asked the Chief Magistrate to stay the charges before her and send the matters to the High Court for there to be a determination on if the fundamental rights provisions have been breached.
Hughes’ application was made pursuant to Article 153 (3) of the Constitution of Guyana which states: “If in any proceedings in any court subordinate to the High Court, any question arises as to the contravention of any of the provisions in Articles 138 to 151 (inclusive), the persons presiding in that court shall refer the question to the High Court unless, in his opinion, the raising of the question is merely frivolous or vexatious.”
According to Ramdhani, Hughes’ submission was made on two grounds.
First, he had contended that the charges were filed in 2020 and that more than two years later in 2022, his clients’ trial is yet to commence. This, he had argued, breached their right to a fair hearing within a reasonable time as guaranteed by Article 144 (1) of the Constitution of Guyana.
In his second ground, Hughes had submitted that the Presidential Commission of Inquiry (CoI) into the March 2020 national elections has begun and that its commissioners have the power to summons anyone, including his clients, to testify before those proceedings.
If they were so summoned, Hughes contended that the State was seeking to criminally prosecute them, and at the same time, compel them to give evidence before the CoI—which would jeopardise their right to remain silent and protection against self-incrimination.
The King’s Counsel, however, had argued that there was no merit in Hughes’ submission, pointing out that these cases are “highly complex” matters that involve volumes of evidence and several witnesses. Ramdhani had also said that the prosecution had to move to the High Court to get copies of the SoPs). An order was made by the Chief Justice to this effect.
He had advanced that the matters have been an ongoing process and given the factors highlighted, there could arise no questions about them not being handled expeditiously. The prosecutor had noted, too, that the CoI is an entirely separate proceeding from the charges in the Magistrates’ Courts. “If they [the defendants] were summoned, they can go and give evidence or raise the question of self-incrimination,” he said.
According to him, if the CoI insists on them giving evidence, even though they have refused to do so, all of this would be on the record. In light of this, he explained that the defendants can tell the Magistrate that they had refused to speak before the CoI, but were compelled to and that whatever they said was not given freely and voluntarily. “The law has very clear principles to prevent you from falling foul to that,” the King’s Counsel pointed out.
The Chief Magistrate, in her ruling on Monday, refused Hughes’s application on finding that there was no contravention of Article 144 (1) of the Constitution. She accepted the prosecution’s position that these are complex charges, stating that both the court and prosecution were proceeding along with the matters in a reasonable way.
She also agreed with the prosecution that the proceedings before the CoI had nothing to do with the defendants’ criminal trial.
Consequently, she dismissed the application as being frivolous and vexatious.
The cases have been adjourned until March 13.
Thus far, the six defendants, during their appearance before the CoI, invoked their right to remain silent. Former CEO Lowenfield’s election report claimed that the APNU/AFC coalition garnered 171,825 votes while the PPP/C gained 166,343 votes.
How he arrived at those figures is still unknown, since the certified results from the recount exercise supervised by GECOM and a high-level team from the Caribbean Community (Caricom) pellucidly showed that the PPP/C won with 233,336 votes while the coalition garnered 217,920.
The recount exercise also proved that Mingo had heavily inflated the figures in Region Four—Guyana’s largest voting District, in favour of the then caretaker APNU/AFC regime.
In August 2021, GECOM voted to terminate Lowenfield, Deputy CEO Roxanne Myers, and Mingo.
The firing of these officials was met with much satisfaction by the Government which hailed it as a step in the right direction to restoring public confidence in GECOM.
Myers, Mingo, and Lowenfield are also facing criminal charges related to their official duties at GECOM in the conduct of the 2020 national elections. (By: Feona Morrison)
