APNU/AFC appeals election petition dismissed last month by Chief Justice

Lawyers for the APNU/AFC have moved to the Guyana Court of Appeal again. This time, they have filed an appeal against Chief Justice Roxane George’s dismissal of election petition #88 which was filed on behalf of the party by Claudette Thorne and Heston Bostwick.  The appeal was filed on Tuesday, June 01, 2021.

And among other things, the legal team argues that  Justice George erred in law when she ordered that the Statements of Poll (SoPs) and Statements of Recount (SoRs) from the March 2020 General and Regional Elections remain in the custody of the Registrar of the Supreme Court of Judicature until all appeals have been completed or a Court otherwise orders.

On April 26, 2021, Justice George dismissed the election petition having found that there were no reasons therein to invalidate the results of the March 2020 General and Regional Elections. The Chief Justice came to her ruling two weeks after wrapping up arguments in the matter.

In seeking to set aside the election results, the petitioners had argued that the March 2020 elections were held in serious non-compliance with the Constitution of Guyana and electoral laws.

Thorne and Bostwick had argued that Section 22 of the Election Laws (Amendment) Act (ELA) and Order #60 of 2020, otherwise known as the recount order are unconstitutional, thus resulting in breaches and violations by GECOM with its conduct of the elections.

In delivering the highly anticipated ruling via live-stream, Justice George held that neither Section 22 of the ELA or Order #60 are ultra vires of the Constitution. “My analysis of the authorities cited has led me to the ineluctable conclusion that Section 22 is not ultra vires of the Constitution. And I so hold, there has been no violation of the doctrine of separation of powers,” she held.

“Section 22 is meant as an aid to the process to permit a determination of a result. It does not permit usurpation of the High Court’s jurisdiction under Article 163 [of the Constitution] at all. Section 22 provides the parametres for its efficacy, and the power granted therein is not arbitrary.”

“It includes sufficient mechanisms to establish that Parliament did not surrender or abdicate its powers. Thus, I hold that there was a lawful delegation of power as provided for in Section 22 so that GECOM could independently and properly control the election process…,” she added.

In upholding the constitutionality of Order #60, Justice George noted that “…it is not ultra vires the Constitution or Section 22. A combination of Article 162 (1) (b) and Section  22 conferred a power on GECOM to issue this Order if GECOM considered  it necessary or expedient to ensure impartiality, fairness, and compliance on part of persons exercising powers or performing  duties on its behalf as regards to the election process and the declaration of the results of the election.”

Moreover, the Chief Justice underscored that a recount of votes is not “alien” to the election process, adding that GECOM has to be in control of the election process until it is satisfactorily completed.

“This is the ultimate power that GECOM has pursuant to Article 162. Thus, Order #60 does not confer any additional powers on GECOM,  but simply alter the procedure to arrive at the result that the Representation of the People Act requires. While the procedure [in this case] was different, the aim and objective were the same. That is, to count the ballots and determine the votes casts for the list of the political parties who contested the elections, “Justice George added.

On appeal of Justice George’s decision, lawyers for the Coalition contended that “The Learned Judge erred in law when she ruled that Section 22 of the Elections Law (Amendment) Act 2000 and Order 60 made thereunder were not in violation of the Constitution of Guyana…”

In court documents seen by this publication, the lawyers further contend,  “The Learned Judge erred in law when she ruled that the said Order 60 was intra vires the said Constitution of Guyana by virtue of conferment of powers under Article 162 (1) (b) and said Section 22 [of the ELA]…”

“The Learned Judge erred in law when she ruled that the Appellants did not produce evidence in the said Petition, in that, being a Petition which claimed that the said March 2nd Elections was not lawfully conducted there was no need for production of any evidence except what was presented, namely, the Declarations as per Regional Returning Officers’ 1 to 10 and the Recount.”

Thorne and Bostwick are asking the Court of Appeal to set aside the Chief Justice’s ruling and award them costs in the Court of Appeal and the High Court.

The Chief Justice has now dismissed all elections petitions filed on behalf of APNU/AFC challenging the results of the March 2020 General and Regional Election. Petition #99 was dismissed in January 2021, for non-compliance with effecting service on the second-named respondent, former President David Granger.

An appeal has since been filed against that ruling. The matter comes up for hearing on Monday, June 14, 2021, at the Guyana Court of Appeal.