May 25, 2021
Chief Election Officer (CEO) Keith Lowenfield
On Thursday—May 27th—acting Chief Justice Roxane George-Wiltshire SC will rule on whether Chief Election Officer (CEO) Keith Lowenfield will be added as a party to the proceedings in which the Director of Public Prosecutions (DPP) and the Commissioner of Police have requested the Statements of Poll (SoPs) and Statements of Recount (SoRs) from the March 2nd, 2020 elections for use in criminal cases against the CEO and others.
In an almost two-hour hearing yesterday afternoon, attorney Nigel Hughes who represents Lowenfield, argued that outside of the purpose for matters connected with an elections petition, the statutory documents ought not to be released.
Pursuant to a court order, the Chief Justice in January ordered that the statutory documents be lodged for safe-keeping with the Registrar of the Supreme Court.
Respondents in the two election petitions, which were filed by the main opposition APNU+AFC, had asked the Chief Justice to order the Guyana Elections Commission (GECOM) to lodge the documents with the High Court.
The DPP and Police Commissioner are, however, requesting the SoPs and SoRs which they have argued are important for the successful prosecution of their case against a number of persons—including Lowenfield—who have been charged with various offences stemming from alleged criminal conduct over last year’s elections results.
Hughes’ argument is that in accordance with the powers and authority with which he is clothed by the Representation of the People Act (RoPA), Lowenfield is not at liberty to avail the documents; though he did say that this can only be done through a court order.
Attorney Darshan Ramdhani who represents the DPP and Police Commissioner has, however, refuted Hughes’ arguments, advancing that there is no interest which the CEO can claim to have under the RoPA or the National Assembly Validity of Elections Act (NAVEA) to prevent him for making the documents available.
Ramdhani said that Lowenfield’s use of Section 102 of RoPA and Sections 19 of the NAVEA is misconceived, since his clients’ application has nothing to do with an elections petition, and therefore there is no protected interest or right which the CEO has for blocking the statutory documents.
On this point he said that the state’s request is grounded on the basis of pending criminal charges before the lower court and that there is no law which prevents the use documents being made available therefor.
He reminded that they are all public records, while stating that the only reason that the request was being made to the High Court, was because it is in the custody of that court, given a previous order of the Chief Justice.
He said that outside of that, his clients would have applied for a search warrant in a bid to have the documents made available, much as is done in other criminal matters which the police investigate to gather evidence.
Ramdhani said that the rights referenced by the CEO under Sections 102 and 19 of the RoPA and NAVEA respectively are only operable under the civil/constitutional jurisdiction of the court dispensing with an elections petition.
Apart from that, however, he said that there is no interest which the CEO can claim as to why the statutory documents should not be made available, even as he (Ramdhani) drew the distinction to show that the application being made to the High Court, is pursuant to a need under a criminal jurisdiction of the Magistrate’s Court.
Ramdhani said that while the only interest which Lowenfield can claim not to have to produce the documents sought is where there is an election petition, that is not what the court is concerned with and the two jurisdictions are different, since the documents are being sought for the prosecution of a criminal matter.
The lawyer emphasized that in accordance with Section 83 of RoPA, the SoPs are public documents, even as he urged the Chief Justice to deny Lowenfield’s application to intervene as a party to the proceedings.
Hughes, however, argued vehemently that his client does not have to produce the documents.
His engagement with the Chief Justice would then last another 30 minutes, as she sought to ascertain from him, what would be the case where the police, in the ordinary course of an investigation, requests documents to aid its investigations or gather evidence.
Hughes responded by saying that the police can so do, but was quick to contend that where the law makes provisions prohibiting the release of the particular Res, as he contends is the case involving his client, then police would be barred from having such documents.
Hughes argued that the CEO is only authorized to make the particular documents available in the case of an elections petition, and nothing else.
He said that outside of that, no one can have access to the documents, though he did say unless the court so orders.
During the discourse with Hughes, the Chief Justice grilled him on the implication of the documents being made available since her previous order had reposed authority in the court’s Registrar who currently has physical custody of the documents.
Hughes said that this would take the case into a whole new dimension. He told the judge that if as she had sought to clarify—her order reposed not only physical possession of the documents with the Registrar, but actual de jure authority as well, then his client would have already lost any authority given him by the RoPA.
On this point he said further, that the request for the documents could therefore not be made to his client as CEO and custodian of the documents, but rather to the court, which has both de facto and de jure control.
Hughes advanced that since the order was made by the court, it is to the court that the request would have to be made, and not even the Registrar.
The further implications he reasoned, is that the parties listed as respondents in the action—that being the Registrar and Attorney General, will also have to be changed, while adding that if it is the court which has such custody and control of the documents, then his application on behalf of his client would be withdrawn as all powers he would ordinarily have over the documents would have been divested from him and now be with the court.
The Chief Justice clarified that if that was the way Hughes interpreted what she had said, it was not what she intended, while stating that the court had only reposed in the Registrar custody regarding physical control of the documents for safe keeping.
Ramdhani said that the only correct submission made by Hughes was that the CEO would need a court order to have the documents be made available. The lawyer said that Lowenfield does not act on his own volition, but rather under the direction and control of GECOM.
Justice George-Wiltshire has set May 27th at 9:15 am to rule.
Following the unprecedented, protracted five-month impasse—from March 2nd to August 2nd, of last year—during which a national recount of all ballots was conducted, the results showed that it was the PPP/C which had won the general elections with 233,336 votes over the coalition’s 217,920 votes.
Subsequent to the announcement, Lowenfield, Deputy Chief Election Officer Roxanne Myers, Region Four Returning Officer Clairmont Mingo, PNCR chairwoman Volda Lawrence, APNU+AFC activist Carol Joseph and a number of other GECOM staff were slapped with a barrage of fraud-related charges connected with the elections.
Those charges are still pending before the Magistrate’s Court, and have formed the basis of the request by the DPP and Police Commis-sioner for the SoPs and SoRs which they say are pivotal to proving their cases against the defendants.
In their fixed date application to the High Court, DPP Shalimar Ali-Hack and Commis-sioner of Police (ag) Nigel Hoppie want the court’s Registrar Suanna Lovell, to be ordered to make the SoPs in her possession available for the Magistrate’s Court trial.
