The Court of Appeal today dismissed the appeal of Krystal Fisher (Fisher v Guyana Elections

        Commission                       and                        the                       Attorney                        General:

2025/47-HC-FDA-CAD-DEM-CIV/APL-CIV-126/2025) wherein the Appellant sought reliefs which, both in form and substance, invited the Court of Appeal, sitting in its ordinary constitutional jurisdiction, to declare the National and Regional Elections held on the 1st of September 2025, unconstitutional. Dr. Vivian Williams appeared on behalf of the Appellant. Mr. Anthony Astaphan SC, along with Mr. Arud Gossai, appeared forthe First Named Respondent. The Honourable Attorney General Mohabir Anil Nandlall SC appeared in person, together with Ms. Shoshanna Lall, Deputy Solicitor General and Ms. Raeanna Clarke, Senior Legal Advisor.

Background

On the 20^th of August, 2020, the Appellant filed Fixed Date Application No. 2025/47-HC-FDA-CAD-DEM-CIV, seeking the issuance of several declarations. The central issue in the Appellant’s case rested in her contention that the Guyana Elections Commission (GECOM) misinterpreted and misapplied the provisions of the Representation of the People Act, Cap. 1:03 (ROPA) in preparing the ballot papers for certain geographical constituencies. Specifically, the Appellant asserted that GECOM’s exclusion of the symbols for the Forward Guyana Movement (FGM) and Assembly of Liberty and Prosperity (ALP) from the ballot in constituencies where these parties neither contested nor fielded candidates violated Articles 13, 59, and 149 of the Constitution of the Cooperative Republic of Guyana (Cap 1:01).

In his judgment delivered on the 26^th of August, 2025, the Honourable Chief Justice Navindra Singh (ag.) determined that both Article 160 of the Constitutionand section 11 of ROPAprovided the legal basis for the exclusion of FGM’s and ALP’s party symbols from the ballot papers in those constituencies where the respective parties had failed to submit lists of candidates. Consequently, judgment was rendered in favour of the Respondents, with costs in the sum of $1,000,000 awarded to each.

The instant appeal was filed on the 30^th of August, 2025. The reliefs sought by the Appellant, both in form and substance, invited the Court of Appeal to declare the National and Regional Elections held on the 1st of September 2025, unconstitutional. The Appellants prayed that the Court of Appeal grant inter alia the following reliefs: 

• A declaration that any election held without the inclusion, on the ballots in all ten regions, of all political parties that have satisfied the legal requirements to contest the national elections is unconstitutional, null and void.

• A declaration that the GECOM’s exclusion of the Forward Guyana Movement (FGM) list of candidates from the ballots national elections in Regions 7, 8, and 9 constitutes a denial of the Appellant’s right to ballot access and to contest free and fair elections.

Ruling of the Court of Appeal

The following pronouncements were made by the Court of Appeal.

Material non-disclosure

1. The Court of Appeal observed that the Appellant failed to disclose that FGM CHOSE NOT to contest constituencies 7, 8 and 9, thereby giving the impression that GECOM unilaterally excluded the names of FGM from the ballots. It was only from GECOM’s Affidavit in Defence that these material facts emerge. The Court of Appeal stated that such material disclosure was frowned upon by the Court as the Appellant must have been aware of this information especially because she was a candidate for FGM. The Court found that such material non-disclosure could lead to the dismissal of the case.

Jurisdiction

2. The Court of Appeal agreed with the Attorney General and Mr Astaphan that, based on established case law, the election process commenced upon the issuance of the presidential proclamation. The Court further noted that the Appellant’s High Court application was filed less than two days before voting by the disciplined forces began, and was served only after that voting had already commenced. Therefore, the Court agreed with the arguments made by the Attorney General and Mr Astaphan that the Appellant’s reliefs amount to a challenge to the validity of elections and must be challenged by way of an election petition, in accordance with Article 163 of the Constitution. In particular, the Court of Appeal accepted the submission of the Attorney General that the present matter was not an appeal arising from an election petition, and as such, the Court was not sitting as an election court. It was exercising its jurisdiction in anordinary appeal, and thereforelacked the authority to pronounce on matters relating to the conduct or validity of elections. Consequently, the Court of Appeal held that it had no jurisdiction to make pronouncements on elections matter.

Merits

• The Court took the view that, assuming it was wrong on jurisdiction, it would proceed to deal with the matter on its merits.  

• The Court of Appeal ruled that the Appellant’s case advanced an EXTREMELY FLAWED viewed of the constitutional and statutory provisions regarding the ability of parties to be allowed to contest in geographical constituencies for which THEY HAVE NOT SUBMITTED LISTS OF CANDIDATES but yet be permitted to contest the

General Elections.

• The Court agreed with the decision of the Chief Justice in the High Court below that the Appellant’s case had no merit and that ballot access and voting rights are limited to parties contesting the particular geographical constituencies

• The Court of Appeal found that there was no violation of Articles 59 and 159 of the Constitution which give the right to vote by way of registration to vote based on the criteria established. Nor was there a violation of Article 25 of the International

Covenant on Civil and Political Rights.

• The Court agreed with the arguments of the Attorney General that while the right to vote is a fundamental part of a democracy, in Guyana IT IS NOT A FUNDAMENTAL RIGHT and that even fundamental rights are not absolute. They are subject to restrictions and qualifications. The right to vote, likewise, is not absolute. For example, one must be registered, the right can only be exercised in the polling district of the registered elector, and can only be exercised in favour of a list that is contesting the election in that district. 

• The Court held that the Appellant had not shown how she has been discriminated against when compared to any other elector or candidate in other geographical constituencies. It cannot be considered to be discrimination against an elector pursuant to Article 149 of the Constitution on the grounds of race or place of origin if the political party of the elector’s choice chose not to contest in that constituency. It is not for GECOM to consider the racial makeup of a constituency in permitting a party to be on a ballot for a geographical constituency that party chose not to contest. Neither is it for GECOM to consider the place of origin of the electors in determining which parties are to be placed on the ballots. Consequently, Article 13 of the Constitution, which speaks to inclusionary democracy is not implicated at all.  

• The Court of Appeal Appellant’s party could only be included in the democratic process if it seeks to participate. The Appellant’s party through the statutory framework had the opportunity to contest all ten geographical constituencies but declined to do so. That most definitely was not the fault of GECOM.  GECOM did not misinterpret or violate any law by not placing FGM on the ballots in places where they decided not to contest.

1. It would be ABSURD to hold that a political party could chose not to participate election and then cry foul by relying on Articles 13 and 149. GECOM did not deny the Appellant ballot access as an elector nor did it prevent her from contesting the election as a candidate for FGM.  It appears that it is FGM that discriminated against its constituents or persons who wanted to vote for them by not fielding candidates in regions 7, 8 and 9. 

1. The Appellant has a misconceived sense of her entitlement to vote based on the fundamental lack of recognition that the political party she chose to represent decided not to represent her in geographical constituency 9 and the other constituencies where it was not placed on the ballot. 

1. Sections 11A, 11B and 11C of ROPA operationalize the elections framework established by Article 160 of the Constitution. The provisions for the system of proportional representation that we have in Guyana must be read as a whole. The Appellant seeks to introduce criteria and considerations that are outside the scope of the constitutional and statutory provisions so the Appellant’s mathematical formula, charts and graphs are irrelevant and of no moment. The cases from Canada, South Africa and other jurisdictions cited on behalf of the Appellant are distinguishable based as they are one different electoral system or challenges to specific legislation in circumstances alien to Guyana.

1. Accordingly, the Chief Justice was correct in his interpretation of ROPA that a political party cannot earn votes in a geographical constituency if it does not field candidates for, and thereby does not contest, that constituency. The finding that a political party can only be included on the ballot of a constituency it is contesting is correct. If a party does not contest in a particular geographical it follows that no votes can be cast for that party on that constituency and therefore it cannot earn any votes for the purposes of seat allocation from the national top up list. A vote for a candidate in a geographical constituency is tied to the vote for a candidate from the national top-up list. 
2. The omission of FGM from the ballots for constituency 7, 8 and 9 is ABSOLUTELY LAWFUL. 

1. The Court noted that it is unfortunate that a litigant (through Counsel) sought to construe the constitution and relevant legislation by relying on fragments of the provisions to bolster their misguided views rather than reading the provisions as a whole.

1. The Court found that the case is MOST UNMERITORIOUS and took up significant judicial time with the court having to deal with it with urgency because of the claims made. Given that the constitutional and statutory provisions are clear, this matter does not meet the bar of a major matter in the public interest. 

1. As a consequence:

                               i.      The appeal is dismissed.

                             ii.           Costs order in the High Court ($1, 000, 000 to each Respondent) is upheld

and costs are to be paid on or before the 14^th November, 2025.  iii. The Court ordered additional Costs to each of the Respondents in the sum of $1,000,000 to be paid on or before 14^th November, 2025.