There is no escaping that the recount results have to be used for the declaration of the winner of the March 2nd general elections and if the Guyana Elections Commission (GECOM) continues to face insubordination from staff, then Chairperson Claudette Singh has the powers to declare the results herself, former Attorney General and PPP/C Executive Anil Nandlall says.

“It is that the results of the election must reflect the will of the electorate cast through the ballots. Every other thing must bend and bow to the glory of this principle. No one can sensibly dispute that the results of the recount reflect the will of the people. Therefore, it must be used as the basis of the declaration of the final results,” Nandlall told Stabroek News yesterday.

“I am saying yes, of course the Chair can declare the results. In the end what is more desirable? The declaration of results that do not reflect the will of the people or a declaration of the results that actually reflect the will of the people? That is the crux of the matter. Clearly the results must reflect the will of the people, and whatever pathway is traversed to arrive at that destination, the end will justify the means,” he added.

In clear defiance of the instruction by the Chair-person to utilise the recount tabulation which shows a win for the opposition PPP/C, Chief Election Officer Keith Lowenfield has thrice  presented figures to the Commission showing a victory for the incumbent APNU+AFC.

His last declaration is currently the subject of a court action in which a coalition agent is attempting to have the High Court compel a declaration based on these numbers, including the discredited numbers submitted by Region Four Returning Officer Clairmont Mingo.

The ruling from that case will be heard today at 4pm.

Lowenfield’s deputy Roxanne Myers has been criticised by the opposition for what they have said were partisan actions and it is unlikely that the opposition-nominated GECOM commissioners will want her deputising for Lowenfield.

Nandlall said that it is also likely that her actions might not be different to that of the CEO and it is why the Commission has to act and ensure that the recount results are used.

Steps
He argued that if the CEO is repeatedly flouting directions of the Commission, in violation of his statutory obligations and worse yet persists in the presentation of a report that the commission knows is not reflective of the will of the electorate as expressed by the ballots, and confirmed by the count on election night and the national recount, then a duty may devolve upon GECOM to make such steps that are “expedient fair and impartial”.

“To do that which is necessary to ensure that results are declared which reflect the will of the electorate. As I said earlier, that is the most fundamental principle in elections laws; declaring results that reflect the will of the electorate. And a procedural irregularity or a legal technicality cannot be used to thwart the will of the electorate. There is a whole body of case law which supports this principle,” he stressed.

Reflecting on actions taken since March 2nd and criticisms faced by the commission to date, Nandlall said that there should be no quibbling over the recount as there is no doubt that GECOM is empowered to do a national recount of the ballots,  if the occasion so arises.

“A combination of Section 22 of the Elections Laws (Amendment) Act and Article 162 of the Constitution confer upon GECOM, a wide array of powers to do virtually anything in the face of difficulties in order to achieve fairness, and impartiality and of course, in order to bring an election to its lawful end. In this case, GECOM’s decision to do a recount was born out of an undertaking given in Court on March 13, in contempt proceedings filed against (District Four Returning Officer) Clairmont Mingo,” he said.

This position, was reiterated in a different matter filed before the same court on March 14. On that very day, an accord was announced by then CARICOM Chair, Mia Mottley on an agreement between the Leader of the Opposition and the President that a recount would be conducted. Nandlall pointed to the fact that no other political party that contested the election raised any objections, and in fact, they all supported a recount.

He reminded that at a GECOM meeting, held on or about March 15, GECOM made a decision to do a recount to be supervised by a CARICOM team. He believes that as no vote was taken on this decision the presumption must be that it was unanimous.

However, APNU+AFC approached the court through one of their candidates, Ulita Moore to challenge the legality of the recount on two grounds. These were that 10 Returning Officers had declared the results of 10 electoral districts, which had been tabulated by the CEO in a report and that only Returning Officers are permitted to grant requests for a recount under the Representation of the People Act and no such request was granted. Therefore, GECOM could not do a recount.

Secondly, that GECOM, by permitting the CARICOM team to supervise the recount, would be surrendering its constitutional role and mandate to that team, who would in turn, be usurping the functions of GECOM.

Binding
Nandlall said that these issues were examined at length by the Court of Appeal in Moore’s case and the Court concluded that GECOM is indeed legally empowered to conduct the recount but that CARICOM may only observe the recount process, not supervise it.

“GECOM proceeded to conduct the recount process. Significantly, only GECOM’s staff was used in the process under the direct supervision of the Commission and the Chief Election Officer. All the parties fully participated in the process and repeatedly bound themselves to the process and its outcome. On many occasions, the issue arose of what would become of the ROs declarations which were held In abeyance, both Commissioners, (Sase) Gunraj and (Vincent) Alexander, speaking to the press representing their respective political interests, stated that once the recount is concluded, the results will be binding and the ROs declarations would be overtaken by the outcome of the recount,” he said.

“The Chief Election Officer personally tabulated the certificates of recount for the 10 electoral districts. The law would never permit a person, who has fully participated in a process grounded in law, not to be bound by its outcome because that outcome is not to his liking. It is also public knowledge that the CCJ in the Eslyn David case thoroughly examined the recount process and the order under which it was done. In the course of its judgment, the CCJ highlighted certain positive characteristics of the process: that it was transparent, that all of the parties participated, that it was fair and that it was live-streamed. I cannot recall an adverse comment made of the process or the order under which it was done. Indeed, the CCJ vacated a report of the CEO in which the CEO did not accurately reflect the results of the process. In my humble view the CCJ throughout its judgment, gave its imprimatur and approval of the recount process,” he added.

Nandlall said that the public should understand that most significantly, the results of the recount process largely mirror the counting of the ballots which took place on elections night and which would have formed the basis of the declaration of results, were there not intervening attempts to fraudulently corrupt those results by the District 4 Returning Officer.

“In other words, the recount results accurately reflect the will of the electorate. Anyone who has but a mere fleeting knowledge of elections laws, will confirm that there is one golden rule that runs throughout the corpus of election laws,” he said.