Chief Justice orders release of SoPs, SoRs; says they are not Lowenfield’s “personal property”

Acting Chief Justice Roxane George, SC, on Thursday ordered Registrar of the Supreme Court Suenna Lovell to release certified copies of the Statements of Polls (SoPs) and Statements of Recount (SoRs) from the March 2020 General and Regional Elections that are in her possession.

In ordering the release of the election documents, Justice George dismissed an application by Chief Elections Officer (CEO) Keith Lowenfield who was seeking to be added as a respondent in the application for the release of the documents that was filed by Director of Public Prosecutions (DPP), Shalimar Ali-Hack, SC and Commissioner of Police Nigel Hoppie.

Pursuant to the Civil Procedure Rules, Lowenfield, through his lawyer Nigel Hughes, contended that he has a right to intervene as an added party in the proceedings filed by the DPP and Top Cop to be heard on the release of the election documents.

Under the National Assembly (Validity of Election) Act, Lowenfield is the sole custodian of those documents. In opposing the release of the documents, Lowenfield argued that he can only release the SoPs and SoRs “for the purposes of an election petition.” But the Chief Justice dismissed this argument

While Lowenfield is the sole custodian of the documents, the Chief Justice noted that he is merely so “as an agent of the GECOM.” Justice George further noted that as the sole custodian, there is nothing preventing the CEO from releasing the documents for the purposes of Police investigations.

According to her, Lowenfield’s contention that he can only release the documents for the purposes of an election petition is “untenable”. The SoPs and SoRs,  the Chief Justice underscored, are not the Chief Elections Officer’s “personal property.” Moreover, Justice George said that Lowenfield has not disclosed how he will be affected by the release of the documents.

Taking this into consideration, the Chief Justice concluded that the evidence before the court permits the release of the SoPs and SoRs. “There can be nothing unlawful about this, a common occurrence in criminal proceeding,” Justice George pointed out. As such, the Registrar of the Supreme Court was ordered to photocopy and certify the SoPs and SoRs and deliver them forthwith to the Attorney General.

After the dismissal of Elections Petition #99 which was filed on behalf of the APNU/AFC by Monica Thomas and Brennan Joette Natasha Nurse, the Chief Justice ordered GECOM to lodge the original copies of the SoPs and SoRs with the Registrar of the High Court for safekeeping.

The DPP and Police want certified copies of the SoPs and SoRs to prosecute the electoral fraud cases against Lowenfield, Deputy Chief Elections Officer Roxanne Myers, and Region Four Returning Officer Clairmont Mingo which are pending before the Georgetown Magistrates’ Courts.

During a hearing earlier this week, Lowenfield’s lawyer contended that other than for the “purposes of an election petition”, his client has no other authority under the law to release the documents.

“What  stops him [Lowenfield] from producing the documents to the Police?” Justice George asked Hughes. The lawyer replied, “the purpose for which he has them is for the purpose for the conduct of the election. He does not have it for any other purpose. If the Police want copies, the CEO can only act as so far as to the powers vested in him under the Representation of the People Act.”

According to Hughes, “…And that means he cannot release the documents. He does not have the jurisdiction to give it to anybody other than for the purpose he has them for.”

Moreover, Hughes submitted that as a consequence the Chief Justice’s order for the election documents to be lodged with the Registrar, Lowenfield was divested of any legal jurisdiction over the SoPs and SoRs. Against this backdrop, Hughes argued that the application filed by the DPP and Commissioner of Police was misconceived.

“This application is misconceived. GECOM does not have custody of these documents. The registrar is the court. And unless the Attorney General is representing the Court, he would not be a proper party [to these proceedings]. So, the court is the legal body that has possession of the documents.  The CEO has been divested of any legal jurisdiction over these documents…,” Hughes argued.

The Top Cop and the Director of Public Prosecutions submitted that the certified copies of the SoPs and SoRs are relevant to prove the commission of the offence against Lowenfield,  Mingo, and Myers.

According to the DPP, there is no restriction to the Police obtaining copies of the SoPs and SoRs since  pursuant to the Representation of the People Act, they are public records for which there is no restriction such as privacy, privilege, or secrecy.

“By the common law and statute, namely Section 50 of the Criminal Law (Procedure) Act, the Commissioner of Police and any member of the Police Force have the lawful right to collect and recover all documents and property which are relevant to the investigation and prosecution of any criminal offence,” Ali-Hack submitted.

According to the DPP, unofficial copies of the SoPs are in the public domain.

Ali-Hack noted that the original documents will confirm and show that certain numbers of cast votes were recorded on those documents and that together with other evidence will show that Lowenfield, Myers, and Mingo deliberately ignored those recorded figures and made false declarations in furtherance of their conspiracy.