PRESS STATEMENT
Chief Justice Rules that Recount Process and Recount Order Valid; Recount Results Must Be Used for the Declaration of Final Results and CEO Must Follow Directions of GECOM
The Chief Justice of Guyana, Roxane George, S.C., in scathing 28 page, well-reasoned judgment, dismissed the claim brought by APNU’s polling agent Misenga Jones, and in so doing ruled that “unless overturned by a Court in an election petition, the only data that could be used for the declaration of the results of the elections would have to be the recount results or data.”
As a result of a fraudulent declaration of votes by Region 4 returning officer, Clairmont Mingo, and after intervention by Caricom, GECOM directed the recount to be done pursuant to Order 60 of 2020 (the “Recount Order”) in accordance with Section 22 of the Elections Laws (Amendment) Act, No. 15 of 2000. The recount results, consistent with the results contained in the PPP/C’s statements of poll generated on elections night, March 2, 2020, contrary to APNU/AFC’s fictitious claims, again confirmed that the PPP/C won the national and regional elections by more than 15,000 votes.
On June 16, 2020 and again on July 9, 2020, the Chairman of the Guyana Elections Commission, Retired Justice Claudette Singh, S.C., directed the Chief Election Officer (the “CEO”) to prepare a Section 96 Report based on the recount results generated from national recount of votes, in order to declare a PPP/C victory. Instead of following those instructions, the CEO, in a fourth blatant attempt to subvert the will of the electorate, reverted to the fraudulent results previously declared by Mingo, and presented to the Commission a report which not only falsely showed an APNU/AFC victory, but inflated the number of votes cast at the regional and general elections by more than 14,000.
When the CEO was again redirected on July 13, 2020 by the Commission to prepare a Section 96 report using the results of the recount, Jones filed a claim against the Guyana Elections Commission and the Chief Election Officer, in essence seeking to invalidate the Recount Order, declare that the CEO must use Mingo’s fraudulent results, and to declare that GECOM could not refuse to act on the CEO’s report nor could he be directed to utilize the recount results for the purposes of a final declaration of the elections result.
The Chief Justice dismissed Jones’ claim in its entirety. In so doing, the Chief Justice upheld the validity of the Recount Order and went further to affirmatively state that Mingo’s fraudulent declarations (and all of the RO’s previous declarations for that matter), could not “be resurrected” in light of the recount. The Chief Justice found that it could not determine the constitutionality of Section 22 of the Election Law Amendment Act since that claim had already been dismissed by the Chief Justice of Appeal in Moore v GECOM, a case filed by an APNU party agent, and that therefore that issue was therefore res judicata. The Chief Justice reminded the parties that in Moore, the Chief Justice of Appeal found that any challenge to Section 22 must be by an Elections Petition, and accordingly, the Court was now bound by that decision.
Viscerally disagreeing with Jones’ flawed interpretation of the CCJ’s judgment that the Recount Order was in tension with Article 177(2)(b) of the Constitution and Section 96 of ROPA, the Chief Justice ruled that the CCJ judgment lent “to the ineluctable conclusion that the recount votes are ex facie valid. Hence the view expressed that any irregularities would have to be addressed via an election petition.”
Hence, the Chief Justice found that Jones’ and the Attorney General’s contention that valid votes could only mean the valid votes ascertained by Mingo’s fraudulent declaration, had “no merit”, since this issue had already been determined by the CCJ, and was also res judicata.
In dealing with the issue of the CCJ’s determination of the legality of the Recount Order, the Chief Justice noted that the CCJ had already relied upon the Recount Order in issuing its decision in David, and that Chief Justice of Appeal in Moore’s case had already in principal determined the Recount Order was legal. The Chief Justice went on to state that any matter concerning the legality of the Recount Order is for an Elections Petition.
The Chief Justice also found that the Chief Election Officer did not have a constitutional mandate under Article 177(2)(b) of the Constitution as Jones had contended, but instead found “[I]n this context, the S 84 (1) declarations can no longer be considered useful.” In striking down Jones’ and the Attorney General’s argument, the Chief Justice stated that while the CEO may be expected to act independently, he cannot be a “lone ranger” agreeing with the submission that Article 177(2)(b) “can be construed to mean that GECOM is not to act on the advice of any person or body external to the Commission.” The Chief Justice found that the CEO did not have a constitutional mandate but rather it was the Chair and the Commission who have a constitutional mandate, not the CEO, and that the CEO, pursuant to Section 18 of the Elections Laws Amendment Act, was lawfully subject to the direction and control of the Commission.
Importantly, in concluding her judgment, the Chief Justice stated that “the ten declarations cannot be resurrected at this point in time. In this regard, there can no longer be an impasse between the Chairperson and the CEO as to the effect of art 177 (2)(b) and s 96. For the avoidance of doubt as stated in s 18, the CEO is subject to the direction and control of the Commission. In this regard, I refer to para [ 14] of the CCJ judgment where it is noted that by s 18 the CEO is “mandated to be subject to the direction and control of the Commission.”.
Finally, the Chief Justice also went to state that the entire matter was res judicata, since almost identical issues were already decided in the Moore and David matters, and that since the CEO was also a party in those cases, he so was bound by those decisions. The Chief Justice lamented that the reliefs sought have been previously litigated and previously decided stating “[t]here must be finality to judicial decisions. Myriad persons cannot be permitted to engage the court with multiple applications regarding the same issue which has been decided, and shield behind the claim that they were not a party to the previous proceedings. To so permit would be to waste precious judicial time and resources. In short order- this cannot be allowed.”
The Chief Justice found that the issues litigated had already “been decided by superior courts” and signaled her intent to penalize Jones in costs.
Despite the Court’s unequivocal ruling, APNU/AFC has signaled their intent to continue to abuse the Court’s process by filing appeal.
However, we are confident that no attempt by APNU/AFC to thwart the will of the electorate will succeed.
We the PPP/C, together with members of civil society, all of the contesting parties and the international community will continue our united stand to do all we can to protect Guyana’s democracy.
