APNU+AFC to ask Appeal Court to expedite 2nd election petition

The content originally appeared on: INews Guyana

APNU/AFC Member of Parliament (MP), Senior Counsel Roysdale Forde has decried the slow pace at which the party’s second election petition is moving at the Court of Appeal of Guyana and is preparing to file an application to have the matter expedited.

In June 2021, Forde appealed to the appellate court against Chief Justice Roxane George, SC’s April 26, 2021 decision, dismissing the coalition’s second election petition which challenged the results of the March 2, 2020 General and Regional Elections.

But more than a year after the appeal was filed, the matter is yet to be heard. Asked on Monday what is causing the delay, Forde related that the record of appeal is not prepared because the court does not have the Chief Justice’s written decision. In the circumstances, he said, “I am preparing to file an application asking for the matter to be expedited.”

The petition filed by Claudette Thorne and Heston Bostwick sought to have the results of the March 2020 national elections invalidated on the ground of serious non-compliance with the Constitution of Guyana and electoral laws as it relates to GECOM’s conduct over those elections.

The petitioners had contended that Section 22 of the Elections Law (Amendment) Act and Order #60, also known as the Recount Order, were in violation of the Constitution.

However, in dismissing the petition, the Chief Justice held that the petitioners failed to present evidence to support that the conduct of the elections contravened the Constitution and electoral laws. She ruled that neither Section 22 nor the Recount Order was ultra vires the Constitution, adding that Article 162 of the Constitution empowered GECOM to take whatever actions were necessary to conclude the elections, including embarking on a recount of all ballots.

Alluding to the events that occurred after the close of polls, Justice George noted, “Given the difficulties, it does appear that it would not have been prudent for GECOM to declare the results in the peculiar circumstances that accompanied the completion of the process of the March 2 Elections. A combination of Article 162 (1) (b) of the Constitution and Section 22 confer the power upon GECOM to issue this [Recount] Order, if GECOM considered it necessary or expedient to ensure impartiality, fairness, and compliance… as regards the election process.”

Not in violation

But coalition lawyers in their appeal contended that Justice George 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.

According to them, by virtue of their application for the election results to be declared invalid, both Section 22 and Order #60 which flowed directly from Article 162 were in conflict with and or contravened Article 177 of the Constitution.

In court documents seen by this publication, they further contended that Justice George again erred in law when she found that Order #60 was a mechanism to allow for the recount to be conducted by expanding the recount provisions in the Representation of the People Act (RoPA).

The petitioners submitted that Justice George erred in law when she failed to find that the mechanisms set out in Order #60 amounted to a substantial variation from the RoPA and consequently could not be said to have “merely modified” the said Act.

Besides that, they complained that she erred in law when she ruled that they did not produce evidence that claimed that the elections were not lawfully conducted. Like before the High Court, they have gone to the appellate court arguing that there was no need for the production of any evidence except the declarations by the Returning Officers and the recount figures.

Thorne and Bostwick, among other things, argue that the Chief Justice erred in law when she rejected the evidence before the court which established that there was a difference in the recorded figures for the political parties in the Official Gazette dated August 20, 2020, in which results were declared pursuant to Order #60 from a letter by former Chief Elections Officer (CEO) Keith Lowenfield to GECOM’s Chairperson, Retired Justice Claudette Singh.

Thrown out

Both of APNU/AFC’s elections petitions have now been dismissed by the Chief Justice. In January 2021, she dismissed the APNU/AFC’s election petition which was filed by Brennan Nurse and Monica Thomas owing to their non-compliance with effecting service on President David Granger.

The party appealed her ruling to the Court of Appeal of Guyana, which by a majority decision on December 21, 2021, held that it had jurisdiction to hear an appeal against a ruling of the High Court to dismiss an election petition on the basis of procedural impropriety.

In so doing, the Court of Appeal rejected arguments by Attorney General and Legal Affairs Minister Anil Nandlall, SC, that the court had no jurisdiction to hear and determine the appeal; neither from statute, the Constitution nor does it have an inherent jurisdiction.Meanwhile, in a consolidated appeal at the Caribbean Court of Justice (CCJ) which was heard on July 19, Nandlall, and Vice President Bharrat Jagdeo, in his capacity as General Secretary of the PPP/C, argued that the Court of Appeal erred and therefore its decision should be overturned.

The CCJ has reserved its ruling.