Three employees of the Guyana Elections Commission (GECOM) have been each ordered to pay $75,000 in court costs to the State by January 16, 2023, after their request for a conservatory order to restrain the presidential Commission of Inquiry (CoI) into the March 2020 General and Regional Elections from summoning anyone charged criminally in relation to those said elections was denied.
On Monday, one day before they were set to appear before the CoI, Denise Babb-Cummings, Shefern February, and Michelle Miller—who are all facing electoral fraud charges— filed a $150 million lawsuit against State, for what they described as a breach of their constitutional right against self-incrimination as protected by Article 144 of the Constitution of Guyana.
In that Fixed Date Application (FDA) filed against the Attorney General and the CoI, they are, among other things, seeking a permanent injunction to prevent the CoI from compelling the attendance of anyone charged with a criminal offence arising from the factual circumstances the CoI is charged with inquiring into.
Notwithstanding this, their Attorney, Eusi Anderson, also filed a Notice of Application (NoA), seeking virtually similar orders as requested by their FDA.
In reply to the NoA, the State, according to a statement from the Attorney General’s Chambers on Thursday, submitted that while the High Court was vested with the power to grant an injunction under Section 23 (1) of the High Court Act, Sections 16 (6) and 16 (8) of the State Liability and Proceedings Act, expressly and specifically prohibit the High Court from granting prohibitory or mandatory injunctions against the State in the form of injunctive/coercive orders.
The statement added: “[The State] further submitted that the CoI into the 2020 General and Regional Elections is a State entity, given that it was established by the President [Dr Irfaan Ali], exercising constitutionally-granted supreme executive authority, and having activated Section 2 of the Commissions of Inquiry Act, Cap 19:03, Laws of Guyana.”
That Section, the missive noted, provides that “The President [who] may issue a commission appointing one or more commissioners and authorising such commissioner or commissioners to inquire into any matter in which an inquiry would, in the opinion of the President, be for the public welfare.”
Having had the benefit of the State’s submissions, the Attorney General’s Chambers pointed out that the trio’s lawyer “sought to abandon the application for an injunction, and instead requested a conservatory order, which may be granted against the State in appropriate cases”.
High Court Judge Damone Younge declined to grant the conservatory order and dismissed the NoA on Tuesday, stating that the declarations prayed for in the NoA were identical to those in the substantive FDA and to grant them would determine the FDA, said the AG’s Chambers.
Consequently, they were each ordered to pay $75,000 in court costs to the State. The hearing of the FDA was adjourned until February 2, 2023, by which time the State must file a defence.
On December 2, the women were summoned to appear before the CoI on Tuesday, and when they did in the company of their counsel, they invoked their constitutional right to remain silent.
In the FDA, Anderson contended that given that Babb-Cummings, Miller, and February were charged with diverse criminal offences related to their official duties at GECOM in the conduct of the 2020 national elections, by summoning them to appear before the CoI, the State was seeking a conviction in the criminal proceedings before the Georgetown Magistrates’ Courts, while simultaneously seeking a conviction in the court of public opinion and the said CoI.
According to counsel, his clients remain in jeopardy as the fraud-related charges against them are yet to be decided; and if convicted, they face imprisonment for not less than five years.
“The State is criminally prosecuting [Babb-Cummings, February, and Miller] and the State is seeking to compel them to give evidence in a tribunal [CoI] which has identical, if not greater, powers than a Magistrate…”, Anderson further contended.
He said that by doing this, the State was breaching his clients’ right to a fair trial in both fora of inquiry.
He argued: “The risk of contradictory answers, contrary findings, pollution of public opinion, varying standards of proof, the absolute right to silence in criminal proceedings and the tacit putting of their case through cross-examination in the said criminal proceedings and any adverse findings of the CoI are all red flags which the resourced and all-powerful State should not ignore.”
He noted that since the State has wilfully exposed the GECOM employees to self-incriminating testimony under risk of compulsion or contempt and has failed to ensure that they receive a fair trial in the criminal proceedings, he submitted that they were entitled to damages for breach of their constitutional right to due process, and a fair trial.
Shortly after the results for the March 2, 2020 General and Regional Elections were officially declared by GECOM, Babb-Cummings, February and Miller, along with other GECOM staff, including former Chief Elections Officer (CEO) Keith Lowenfield and former Deputy CEO Roxanne Myers, and several members of the A Partnership for National Unity/Alliance For Change (APNU/AFC), including former Health Minister Volda Lawrence, were charged with varying offences stemming from alleged wrongdoings during the elections.
Specifically, Babb-Cummings, February, and Miller were each charged with conspiracy to commit fraud. It is alleged that on March 13, 2020, February, while a clerk for District Four, attempted to defraud the people of Guyana by not using figures from the Statements of Poll (SoPs). Babb-Cummings, February, and Miller have pleaded not guilty to the charges. They are on bail.
