GECOM’s Chair must follow CEO advice and act on it- AG maintains

DPI, Guyana, Saturday,July 25, 2020

The Attorney General (AG) and Minister of Legal Affairs, Hon, Basil Williams, SC., has maintained that the Chairman of the Guyana Elections Commission (GECOM) must follow the advice given by the Chief Elections Officer and act on it.

The Attorney General was at the time delivering his submissions during the oral arguments in the appeal filed by private citizen Misenga Jones challenging the ruling of the High Court.

The matter is being heard by Appeal Court Judge President Justice Dawn Gregory along with Justices Priya Seenarine-Beharry and Rishi Persaud.

Misenga Jones had challenged GECOM’s move to make a declaration of the March 2 elections, using votes tabulated by the national recount process, which she said was ruled unconstitutional by the Caribbean Court of Justice (CCJ) on July 8.

However, Chief Justice Roxane George, ruled that the recount data should be used to decide the winner of the elections. She ruled that the CEO did not have a constitutional mandate and also held that pursuant to Article 177: 2 (B), GECOM is not to act on the advice on any person or body external to the commission.

AG Williams argued that the Chief Justice erred and misdirected herself when she interpreted the provisions of Article 177: 2 (B).

According to the AG, those words are not in Article 177: 2 (B) in fact, he noted it is the opposite, whereby the Article advises the CEO to act alone in his advice to the commission.

“The words in 177: ‘shall and acting only in accordance to the advice,’ are mandatory and have three mandatories advise or commands, and is a simple natural grammatical literal meaning of Article 177: 2 (B),” the AG Williams stated.

These are; the presidential candidate that received the most votes shall be deemed to be elected as president; the chairman shall declare the presidential candidate to be the elected president, and the chairman shall make the declaration using only the advice of the CEO,” he explained.

“Acting only in accordance with the advice, that too must be given a plain meaning to arrive at the true intent of the legislature,” the AG maintained.

He emphasised that the role of the CEO under the Constitution must be seen as separate from the day-to-day administrative function where he is under the direction of the commission.”

The Attorney General told the court that the promulgation of this specific advisory role to the level of the constitution must not be viewed as ‘ordinary’ and taken lightly as the elections must be seen as being free of interference; “even the interference of the commission which is made up of politically-appointed commissioners.”

“The words ‘acting only on the advice of the Chief Elections Officer’ are deliberate and clear and have to be given their true meaning,” he stressed.

The AG cited the Law Society of Botswana and Omphemetse Motumise versus President of Botswana, Judicial Service Commission and Attorney General case in 2017 where this said principle as supported.

In that particular case, the court ruled that the expression, ‘acting according to the advice of’, had a subtle meaning that the person had to follow the advice given and act upon it. Furthermore, the president’s role in the appointment has and remains purely formal and he was bound in the matter of appointment as an individual to act following with the advice given to him by the Judicial Service Commission.

Therefore, the AG concluded that “We are respectfully submitting mutatis mutandis, that in this case (Misenga Jones vs GECOM), the Chairman’s position is merely formal and simply to follow the advice given and act on it.”

 

Note: mutatis mutandis – A Latin phrase often used in law meaning ‘with the necessary changes having been made’.