Setting aside of declaration only for petition court- Misenga Jones argues
DPI Guyana, Friday, July 17, 2020
Private Citizen Misenga Jones through her lawyer today argued that the Guyana Elections Commission (GECOM) lacks the power to set aside any declaration, as that power lies only in an elections petition court.
Jones’ arguments were the first to be heard by Chief Justice (ag) Roxane George during the virtual hearing of the Fixed Date Application (FDA) filed by her; preventing the GECOM from making a declaration of the March 2, 2020, General and Regional Elections using the votes generated from the national recount.
Through her attorney John Jeremie, SC the applicant contended that GECOM cannot, on its own, disregard the 10 declarations made by Returning Officers (RO’s) in March and which the Chief Elections Officer (CEO) Keith Lowenfield relied on when he submitted his final report last week.
The elections commission is locked in a virtual dispute between the CEO and Chair of GECOM (ret’d) Justice Claudette Singh, on which report should be used to declare the winner of the March 2 Elections.
Senior Counsel John Jeremie who is representing Misenga Jones in the Misenga Jones vs the Guyana Elections Commission et al case that was heard in the High Court.
Justice Singh had ordered the CEO on three occasions to submit a report using the numbers from the gazetted vote recount.
However, the CEO had stated that he could only be guided by the Constitution and the Representation of the People’s Act and the most recent decision of the Caribbean Court of Justice (CCJ) which ruled that the national recount was unconstitutional.
Like the CCJ, the applicant has argued that Section 22 of the Elections Law (Amendment Act) relied on to facilitate the national vote recount was unconstitutional.
The CCJ had ruled that GECOM could not use Order 60 or that the National Recount Order could not be used as a “new regime” for Guyana’s General Elections as it is in contention with the Constitution.
Attorney Jeremie also put to the court, that it is well within its power to assume supervisory jurisdiction over the matter, as it did in the March 2020 Holladar case.
Opposing submissions are contending that Jones’ application is fitted only for an elections petition. But Jeremie stated similarly as in the case of the Holladar matter, where an elections officer had allegedly not followed the process as outlined in the relevant statutory documents, such failure is opened to judicial review.
In that matter, the applicant Reaz Holladar claimed that the Region Four RO had failed to follow the law when tabulating the votes for his district. Jeremie reminded the Chief Justice of her ruling regarding jurisdiction when she stated:
“I am therefore cognisant of the restriction that would require the approach to the court by way of an elections petition. Further, there can clearly be cases where the court’s supervisory jurisdiction can be invoked to provide the correct and smooth operation or progress of the elections proceeding. A court cannot shirk its duty in this regard, and shelter behind a convention that an election petition should be filed when the case clearly does not so warrant.”
He said in the Holladar matter, the alleged failure of the RO to comply with the provision of Section 8 of the Representation of the People Act (RPA) addressing the mechanisms therein, there were allegations of breaches.
Senior Counsel Jeremie submitted that no petition can resolve the impasse that now exists between the Chair and the CEO. “You do not get an elections petition without resolving this dispute,” he told the court.
He said the challenge before the court is not about the validity of the elections, but squarely the proper processes to be employed by the elections commission.