Election fraud cases: No judge and jury – Prosecutor tells court in argument for summary trial

Given Guyana’s political divide, former Chief Elections Officer (CEO) Keith Lowenfield; former Deputy CEO Roxanne Myers, former Region Four (Demerara-Mahaica) Returning Officer Clairmont Mingo, and the others who are all charged with electoral fraud will not be given a fair trial by a jury of their peers.

This is the contention of Queen’s Counsel (QC) Darshan Ramdhani, who, along with several Attorneys-at-Law, has been granted a fiat by the Director of Public Prosecutions (DPP), Shalimar Ali-Hack, SC, to prosecute the electoral fraud charges against Lowenfield, Myers, Mingo; PNCR Chairman and former Health Minister Volda Lawrence; APNU-AFC activist Carol Joseph-Smith and others.

The more-than-a-dozen matters relating to their conduct over the March 2020 General and Regional Elections are currently before three magistrates – Chief Magistrate Ann McLennan, Principal Magistrate Sherdel Isaacs-Marcus, and Senior Magistrate Leron Daly, who all preside at the Georgetown Magistrates’ Courts.

During a telephone interview with this publication on Wednesday, Queen’s Counsel Ramdhani said the matters were called on Tuesday before Magistrate Isaacs-Marcus, before whom he advocated for the accused persons to be tried by a Magistrate as opposed to them being tried by a jury before a Judge at the High Court.

Attorneys-at-Law Nigel Hughes, Ronald Daniels and Narissa Leander, who are representing Lowenfield, Myers and others, are asking for their clients to be tried before a jury, given the magnitude of the allegations levelled against them. This means that the Magistrate would have to conduct a Preliminary Inquiry (PI) to determine whether there is sufficient evidence to commit the accused persons.

When contacted earlier this year for an update on the charges against Lowenfield, Daniels had said, “The allegation is that he [Lowenfield] has committed fraud against everybody in the country, so the best forum for that is before the High Court, where the jury, as representatives of the people of the country, [would determine] whether fraud has been perpetrated against the country.”

In February, Magistrate Daly ruled that she would proceed with the charges against Myers by way of PI. The DPP appealed the Magistrate’s ruling to the High Court. In October, Justice Franklin Holder upheld the Magistrate’s decision. The DPP has since appealed Justice Holder’s ruling.

So far, Magistrate Daly has decided on conducting a PI, but the Chief Magistrate has ruled that she would hear and determine the matters.

Magistrate Isaacs-Marcus, on the other hand, is yet to decide on how she would proceed with the charges before her.

On Wednesday, Hughes issued a press statement in which he quoted QC Ramdhani as saying there can never be a fair jury trial in political matters in Guyana’s High Court due to the country’s political and ethnic divide. Hughes added that the Queen’s Counsel made this statement of “fact” before Magistrate Isaacs-Marcus: “When you consider the matter, please consider this a relevant fact that these matters are grounded in allegations of elections misconduct and the accused persons cannot be tried fairly in the High Court. No one will ever have a fair trial in the High Court in political matters. We know what the politics of Guyana is like. Guyana is a politically polarised and ethnically divided society. No jury would be impartial in political matters,” Hughes quoted Ramdhani as telling the Magistrate.

Inaccurate, mischievous

But the QC has dismissed the contents of Hughes’s statement, calling it “inaccurate” and “mischievous”, while noting that he expected better from the prominent lawyer. Ramdhani related that he had indeed told the Magistrate of there being a political divide in Guyana. However, he said, “I made no reference to an ethnic divide”.

The Queen’s Counsel has said he has made an application before Magistrate Isaacs-Marcus for her to hear and determine the matters before her. He noted that the law allows for a Magistrate to try the matters summarily and impose the maximum sentence of one year in prison. Even if the matters are sent to the High Court, he said, a Judge cannot impose a greater penalty than the Magistrate.

Personal biases

Ramdhani reasoned that if these electoral fraud cases are sent to a jury, the panel would most likely comprise of voters who have voted on “both sides of the coin”. The lawyer therefore questioned, “And you are going to ask these people to put aside their personal biases to determine this case?”

Explaining the nature of the charges, he said it is alleged that several persons have conspired to declare votes in favour of one political party. “…a conspiracy to defraud the voting population of Guyana. We don’t need rocket science to know that there is a political divide in Guyana,” he added.

In light of this, Ramdhani said, he has asked Magistrate Isaacs-Marcus to “keep and try” these matters. His reason for doing so, he noted, is because the Magistrate is a judicial officer, “and as a judicial officer, she is a professional arbiter of facts”. According to him, judicial officers can deal with matters professionally.

The QC added that when Hughes inserted the word “ethnic” into his statement, he completely ignored this. Ramdhani recalled that there have been three treason trials in Guyana over the last 30 years, some against the ruling PPP and PNCR, and all ended in hung juries, resulting in the accused persons being freed after a while.

The Queen’s Counsel said, “One of the reasons why there is a hung jury is that there is a real likelihood that these people [jurors] feel strongly about the political elements of the case…which side am I supporting…”

Against this backdrop, he pointed to the corruption charges against the former Premier of the British Overseas Territory of Turks and Caicos Islands (TCI), Michael Misick. Referring to this case as a precedent, Ramdhani said that due to the nature of the charges against Misick, the British Government suspended jury trials in the TCI; trials are only conducted by a Judge alone. Moreover, he said that Magistrate Isaacs-Marcus should really “keep these matters”, because there is a likelihood the matters will not be tried within a reasonable time, due to the backlog in the criminal assizes.

“…we are going to languish in the court system for five years if you have to go through a jury trial,” Ramdhani said. That aside, the QC maintained that jury trials have been part of Guyana’s legal system from time immemorial. He added, “On a daily basis people get a fair trial in the High Court.”

But considering the nature of the charges against Lowenfield and others, Ramdhani noted, one has to consider the issue of jury bias from a legal standpoint. Magistrate Isaacs-Marcus has instructed him to lay over submissions in support of his position. The case will come up again in the new year.

Lowenfield is facing three counts of forgery and three counts of misconduct in public office. Mingo is facing four counts of misconduct in public office, while Myers has been slapped with two similar charges. Lawrence, on the other hand, has been slapped with two charges of conspiracy to commit fraud. Joseph-Smith is charged jointly with Mingo for forgery. They have all been placed on cash bail.

Lowenfield’s election report claimed that the then caretaker APNU-AFC coalition Government garnered 171,825 votes while the PPP/C gained 166,343 votes. How he arrived at those figures is still unknown. The certified results from the recount exercise supervised by GECOM and a high-level team from the Caribbean Community (CARICOM) pellucidly showed that the PPP/C won with 233,336 votes while the coalition garnered 217,920.

The recount exercise also proved that Mingo heavily inflated the figures in Region Four – Guyana’s largest voting District – in favour of the APNU/AFC regime. [First published in the Guyana Times]