On Monday, December 18, the Court of Appeal of Guyana will deliver its ruling regarding Election Petition #88. The main parliamentary Opposition is attempting to have the petition restored following its dismissal by acting Chief Justice (ag) Roxane George, SC, more than two years prior.
In Claudette Thorne and Heston Bostwick v Keith Lowenfield, the Opposition had appealed Justice Georgeโs decision, arguing that the results of the elections held on March 2, 2020, ought to be declared void due to grave violations of the Constitution and electoral laws concerning the Guyana Elections Commissionโs (GECOM) handling of those elections.
Petition #88 challenges Order 60 of 2020, under which the national recount of the 2020 General and Regional Elections was done. Attorney General Anil Nandlall, SC, has reminded that the Order being challenged by the Opposition is the very one crafted by its Commissioners at GECOM.
โThey sat and drafted a unanimous order. None of them disagreed with it. There was no vote taken on Order 60. GECOM sat down and decided that GECOM would recount the ballots by an order that they crafted, called Order 60. When the results did not suit the PNC, they challenged Order 60,โ he has contended.
The AG, however, has pointed out that the Peopleโs Progressive Party and its Government have a sordid record at the Court of Appeal in political matters, and the opposite at the Caribbean Court of Justice (CCJ).
โI donโt think we have received a single favourable ruling since 2020, and thatโs the record. I am not casting any aspersionsโฆbut the statistical data will show that we have not been able to get a favourable ruling from that Court in these political matters, and we have been able to get almost 100 per cent reversal when we go to the Caribbean Court of Justice.โ
The Chief Justice had made it clear in her ruling that Article 162 of the Constitution of Guyana fully empowered GECOM to take whatever actions were necessary to conclude the elections, including the recount.
Justice George noted that had there been no difficulties with the election, then GECOMโs creation of Order 60 would have been illegal. However, she pointed out that even the election petition highlights the difficulties GECOM faced in arriving at a valid election result.
Among her findings was that the petitioners failed to prove their case that there were substantial irregularities.
โUltimately, despite the reliefs sought, this petition does not rely on the second limb of Article 163 (b) and Section 30 of the National Assembly Validity of Elections Act Chapter 104, that there have been unlawful acts or omissions affecting the results. Indeed, evidence that there were unlawful acts that affected or may have affected the result of the election have not been provided in this petition,โ Justice George had said.
โI hold that to exercise general direction, and supervision over the elections, GECOM had to ensure the lawful and proper implementation of the RoPA [Representation of the People Act]. This was done lawfully by GECOM via Order 60, enabling it to issue instructions and take action as appeared necessary to resolve the controversies, as part of its responsibility to complete the election process.โ
The current appeal was heard by acting Chancellor of the Judiciary, Justice Yonette Cummings-Edwards, and Justices of Appeal Dawn Gregory and Rishi Persaud.
About the Oppositionโs second election petition, petition #99, the Caribbean Court of Justice (CCJ) found last year that the Court of Appeal erred when it took jurisdiction to hear the matter. Justice George had dismissed that petition on the grounds of improper service to former President David Granger. Nandlallโs argument before the CCJ was that having not been determined on its merits, the petition could not be appealed.
The ruling by the Trinidad-based court effectively meant that the Court of Appealโs decision was quashed, effectively restoring Justice Georgeโs January 18, 2021 ruling; and that the petitioners Monica Thomas and Brennan Nurse had exhausted all their rights to appeal.
