Chairperson of the Guyana Elections Commission (GECOM) Claudette Singh has reasoned that any review focused on investigating actual occurrences during the 2020 election by the electoral body would be outside of the scope of its power.
However, she noted that should the intention of a proposed review be to consider if there are, in fact, potential weaknesses in the processes employed by GECOM for the conduct of elections, and to propose improved methods or processes for future elections, then this can and should be undertaken.
Justice Singh made these positions known in writing following a request made some five months ago by the Opposition Commissioners that an internal investigation be launched into the events of the 2020 elections.
See the full decision made by the GECOM Chair:
Introduction
It is important to distinguish between a review of GECOM’s processes in effectively conducting an election and an investigation into what actually transpired during a particular election. The former examines the effectiveness of the system that is in place to ensure that an election is carried out in accordance with the law, which may include the consideration of claims made in respect of a particular election to ascertain whether there are (potential) weaknesses in the system that need to be addressed. The latter is to determine the truth of particular claims, leading possibly to a determination of the validity of an election.
Article 163(1) of the Constitution, the Supreme Law of Guyana, stipulates that the High Court has exclusive jurisdiction to determine questions relating to the validity of an election. GECOM is not a court of law and therefore has no authority to determine whether an election was lawfully conducted, and no such power was conferred on it under Article 162 (1) (b). A perusal of Articles 162 and 163 shows that the Constitution clearly and sharply separates the functions of GECOM and the High Court respectively in matters of electoral laws.
The Commission does not have, and cannot clothe itself with, the powers of a Court of Law to examine and re-examine witnesses or to procure official documents to determine the truth of the allegations contained therein. Any such question can only be determined by way of an election petition filed in the High Court.
Two of the questions raised in relation to whether GECOM should conduct a review of the 2020 elections are the –
voting of persons who could not have voted, whether because they were dead or out of the jurisdiction, and
absence of documents, required by the law to be present in ballot boxes, from a number of ballot boxes.
Validity of votes
In relation to the first question, which is essentially an issue of the validity of votes, Section 96 of the Representation of the People Act Cap 1:03 calls on the Chief Election Officer to calculate the total number of valid votes of electors which have been cast for each list candidate.
The term valid votes received judicial interpretation from the highest court of Guyana the CCJ at paragraph [45] of the decision of Mohamed Irfaan Ali v Eslyn David. Justice Saunders P stated:-
“Validity in this context means, and could only mean, those votes that, ex facie, are valid. The determination of such validity is a transparent exercise that weeds out of the process, for example, spoilt or rejected ballots. This is an exercise conducted in the presence of, inter alia, the duly appointed candidates and counting agents of contesting parties. It is after such invalid votes are weeded out that the remaining “valid votes” count towards a determination of not only the members of the National Assembly but, incidentally as well, the various listed Presidential candidates. If the integrity of a ballot, or the manner in which a vote was procured, is questioned beyond this validation exercise, say because of some fundamental irregularity such as those alleged by Mr Harmon, then that would be a matter that must be pursued through Article 163 after the elections have been concluded”.
Although the Chief Immigration Officer submitted a list of names or persons who were alleged to have been out of the jurisdiction on election day but yet appeared to have voted, such information cannot be regarded as established facts but can only be tendered as evidence for determination by a court of law. Such a court can determine the credibility of such information by calling witnesses and subjecting them to cross-examination. These witnesses would be no other than Immigration officers who would have to tender the Entry and Departure documents of those persons and also their identity must be ascertained from their travel documents.
The most that GECOM can do in this regard is to examine its processes to see whether there are gaps or weaknesses in its processes that make it possible for votes to be counted for persons who could not have voted. This requires no more than an examination of the processes currently employed in light of the claims made, and a determination of whether there is potential for such to have occurred. If there is, then the Commission can consider what adjustments can be made to improve the system.
Missing Documents
As regards the 47 ballot boxes which were devoid of certain documents which ought to have been placed in the boxes by law, the validity of these claims and the consequences of whether or not they are valid are not matters that can be properly ventilated by this Commission. Again, that is the jurisdiction of an Election Court, where witnesses could be called, examined and cross examined and documents tendered.
GECOM can, however, examine and strengthen its processes if necessary, and place greater emphasis in the future on ensuring that they are fully complied with by all of its staff, so that such things cannot happen in a future election.
Conclusion
Therefore, I am of the view that any review focused on investigating actual occurrences during the 2020 Election by GECOM would be outside of the scope of GECOM’s power and a circumvention of the law questioning the validity of an Election.
However, should the intention of a proposed review be to consider if there are, in fact, potential weaknesses in the processes employed by GECOM for the conduct of elections, and to propose improved methods
or processes for future elections, then this can and should be undertaken. There is, in fact, an established mechanism whereby the final report of an election, which the CEO must cause to be prepared. This report can be analyzed and be the basis for such a discussion.
