Order #60 of 2020 which was created pursuant to Section 22 of the Election Law (Amendment) Act and Article 162 of the Constitution of Guyana to facilitate the recount of all ballots in the March 2020 General and Regional Elections is unconstitutional.
So, contends lawyers for the APNU/AFC in the party’s only surviving election petition- petition #88 in which they are seeking to set aside the results of those elections.
Chief Justice Roxane George, SC, will commence hearing arguments in the petition which was filed by petitioners, Claudette Thorne and Heston Bostwick, today April 7, 2021, at 9:15 am at the High Court in Demerara.
The proceedings can be live-streamed here: https://supremecourt.gy/claudette-thorne-et-anor-v-keith-lowenfield-et-al
There are about 13 respondents in the petition including Vice President Bharrat Jagdeo, Attorney General Anil Nandlall, SC, former President David Granger, Chief Elections Officer Keith Lowenfield, and representatives of the political parties that contested those elections.
Ahead of today’s hearing, the petitioners have laid over submissions in response to those filed by Jagdeo, Nandlall, and the Chief Elections Officer. Represented by a battery of lawyers led by John Jeremie, SC, and Roysdale Forde, SC, the petitioners want the Chief Justice to vitiate the results of the election on the basis that Section 22 of the ELA and Order #60 are unconstitutional.
Order #60 was created by the Guyana Elections Commission (GECOM) to resolve irregularities, discrepancies, and anomalies occurring in the elections process and to determine a final credible count.
“…the election results came after there were egregious departures from the legislative framework that touched and concerned the proper parties to make declarations for the respective electoral districts, the conduct of recounts, the breaking of seals and reopening of
ballot boxes and ultimately the declaration of the final results,” the petitioners argue.
In their submissions, Nandlall, Jagdeo, and Lowenfield contend that there is no evidence that the results of the elections were affected by Order #60, and thus the elections/recount does not fall to be considered as a sham or a travesty.
However, Thorne and Bostwick are maintaining that evidence is not required and have laid over case laws in support of their contention.
Thorne and Bostwick argue that the instant case falls within such a category so long as there is proof of substantial departure from the electoral laws even if the result was affected so that the elections ought to be vitiated.
Taking this into consideration, they argue, “The instant case does not require evidence that the results of the elections were affected.”
“…the petitioners submit that the unconstitutionality of Section 22 and Order 60 mark a clear departure from the democratic principles which ought to govern elections and the declaration of results such that the 2 March 2020 Elections was a sham and a travesty to the ordinary Guyanese man/woman. Order 60 was a codification of that sham and travesty which ought never to be sanctioned by any court of law acting in obedience to the rule of law.”
Having regards to the foregoing, the petitioners are asking the High Court to vitiate the results of the March 2, 2020, General and Regional Elections “as it was substantially not in compliance with the law in relation to the conduct of the election.”
Meanwhile, Attorney General Anil Nandlall, SC, has submitted that the elections petition filed on behalf of the APNU/AFC is destined to fail. This is so, he argues because it contains no evidence upon which the results of the elections can be invalidated.
According to Nandlall, the petitioners have failed to discharge the heavy burden of rebutting the constitutionality of Section 22 of the ELA, neither have they been able to establish that
Order #60 of 2020 was in any manner whatsoever ultra vires or unlawful.
While the petition was purportedly filed under Article 163 of the Constitution and the National Assembly (Validity of Elections) Act, Nandlall argues that there are no material facts in this election petition and or no foundation being laid to establish the grounds upon which the March 2020 election can be vitiated.
Relying on the local case of Esther Perreira v Chief Election Officer et al 1998, Nandlall explained that retired Judge Claudette Singh (now Chairperson of GECOM) examined Article 163 of the Constitution and formulated that there is a two-pronged approach in determining whether an election should be vitiated.
According to Nandlall, Justice Singh held that there must be a distinction as regards the question relating to the unlawful conduct of an election and an unlawful act or omission which has affected or may have affected the results of the elections.
He, therefore, said that the petition filed by Thorne and Bostwick does not seek to challeng the conduct of the March 2020 election, but rather contends that an unlawful act or omission has affected or may have affected the election results.
“That unlawful act is Order 60 and the recount process which flowed therefrom. A petition that challenges an election on this ground must not only establish that the challenged act is unlawful but that it has or may have affected the result of the elections,” Nandlall submits.
He added “It is already submitted that Order 60 and the recount process are valid and lawful. Secondly, this petition fails to establish any satisfactory evidence that the said Order 60 and the recount process have affected or may have affected the result of the election. There is no evidence of any variation between the first count which took place at the end of poll and the count which took place under Order 60.”
According to the Attorney General, all the recount process did was recount ballots cast on voting day.
In concluding, Nandlall held, “Even if it is found that the recount and Order 60 are unlawful there is still no evidence that either or both of them materially affected the results of th of them materially affected the results of the elections. This petition is destined to fail.”