GECOM Chair argues appeal of recount case should be dismissed

By Editor On Jul 24, 2020, News Room - https://newsroom.gy/2020/07/24...should-be-dismissed/

Justice (rt’d) Claudette Singh, the Chairwoman of the Guyana Elections Commission (GECOM) is arguing for the appeal filed against Monday’s ruling of Chief Justice Roxane George to be dismissed.

The Chief Justice had validated the recount of ballots cast on March 2 and invalidated all other elections report made before the recount started.

“…the Appeal filed herein is frivolous, vexatious and amounts to an abuse of the Court’s process,” Justice Singh’s attorney Kim Kyte-Thomas submitted in her written response to the Court of Appeal.

Kyte-Thomas will present oral arguments when the case comes up on Saturday at 10:00h.

In her written submission, she argues that the appeal lacks merit and ought to be dismissed since the findings and decision of the Chief Justice represent the long-established jurisprudence of electoral laws and the electoral regime in respect to the issues raised before the court.

She reasoned that the issues raised were heard and determined before, and in keeping with the res judicata principle, the application should not be entertained by the Court of Appeal.

Kyte-Thomas argued that the recent decisions of the Court of Appeal and the Caribbean Court of Justice (CCJ) dealt with the same issues being raised again, and so the appeal seeks to re-litigate issues already determined.

Attorney Kim Kyte-Thomas

The applicant Misenga Jones, an agent of APNU+AFC, is again challenging the constitutionality of the order which provided for a recount of all votes cast on March 02 and whether the declarations made before the recount should stand.

The reason for the argument that the old declarations should be used is that the country’s electoral laws provide for Returning Officers to declare the results in their respective districts and those results are then tabulated by the Chief Elections Officer (CEO) to provide a report to GECOM for a declaration of the winner to be made.

Kyte-Thomas contended that Order 60 is lawful and she argued that the Court of Appeal has already ruled that questions regarding the elections process must be argued during an elections petition after the results of the elections are declared.

“Any challenge to the validity of an election and any dispute or claim of any irregularities or illegalities in relation to an election can only lawfully form the basis of an Election Petition after the result has been declared,” Kyte-Thomas stated.

She also pointed out the pronouncement of the CCJ that “unless and until an election court decides otherwise, the votes already counted by the recount process as valid votes are incapable of being declared invalid by any person or authority.”

The Chief Justice in her ruling Monday made it pellucidly clear, Kyte-Thomas argues, that “far from nullifying Order 60 and the recount process, in my view the CCJ explicitly endorsed it”.

Further at paragraph 60, the Chief Justice had stated that “both courts had pronounced on the issue and as such she could not rule that Order 60 was invalidated”.

“It is respectfully submitted that the Court of Appeal and the Caribbean Court of Justice have already determined the validity of the Recount process and the recount Order and found that the process was transparent and in keeping with the Constitutional powers of GECOM as well as the legislative framework of our electoral system,” Kyte-Thomas stated.

She noted that in the recount process, the District Coordinators for each district signed off the Certificates of Tabulation which were also signed by the stakeholders. The District Coordinators were equivalent to the Returning Officers provided for under the electoral laws.

Regarding the role of the Chief Elections Officer, she argued that nothing that the Officer does in relation to the elections is exempt from the direction, instruction, or supervision of the Commission.

“He cannot act arbitrarily or as a ‘lone ranger’, in the words of the Honourable Chief Justice but is subject to the Commission, the Constitution, and the laws of Guyana.”