Keith Lowenfield

Private citizen challenges GECOM’s decision to declare elections using ‘fraudulent’ votes
…seeking several orders restraining CEO, chairman

By Svetlana Marshall

JUST minutes before he was expected to submit his report to the Guyana Elections Commission (GECOM) in keeping with Section 96 of the Representation of the People Act, the Chief Elections Officer (CEO), Keith Lowenfield, was served with a Notice of Motion, restraining him from doing just that on the basis that his report includes votes that are not valid and credible.

The report, which contains data generated during the national recount based on ‘votes cast’ at the General and Regional Elections, would have paved way for the declaration of the elections results by the Chair of GECOM, Justice (Ret’d) Claudette Singh, and ultimately the swearing-in of the President. With legal proceedings initiated, the electoral process has been halted.

“The notice restrains the CEO from ‘complying with the directions of Chairperson’ and as a consequence a report was not submitted,” GECOM’s Public Relations Officer, Yolanda Ward, told reporters on Thursday. #

The Notice of Motion was filed in the Court of Appeal and served on both the Chair of the Guyana Elections Commission and the Chief Elections Officer on Thursday. According to Ward, “the notice was severed on the CEO before 13:00hrs (deadline for submission of report).”

The application was filed in the Court of Appeal, in its original Constitutional Jurisdiction conferred by Article 177 (4), by Attorney-at-Law Mayo Robertson on behalf of Eslyn David – a private citizen, against the CEO, the Chair of GECOM, the Elections Commission and the Attorney General, Basil Williams. Moments after the injunction was filed, Robertson explained that it expected that once legal proceedings have been initiated, the parties involved would await the ruling of the court before moving forward.

“There is a general convention in the legal profession that is followed almost universally among lawyers, especially here in Guyana, that once a matter is filed in the Court of Appeal, the parties will not take any action until the Court of Appeal makes a determination,” Robertson explained.

In the application, David, through her attorney, sought an order restraining the Chief Elections Officer from submitting to the Elections Commission, an Elections Report under Section 96 of the Representation of the People Act, Chapter 1:030, containing votes which are not valid and credible.

“An order restraining the Chief Elections Officer from complying with the Direction of the Chairman of the Guyana Election Commission as set out in a letter dated 16th day of June, 2020, to submit an Elections Report under Section 96 of the Representation of the People Act without the Guyana Elections Commission determining the final credible count and or the credibility of the result of the General and Regional Elections held on the 2nd day of March, 2020, as required by the Order No. 60 of 2020 and the amended Order of the 29th day of March, 2020,” another section of the application read.

David also wants an order that restricts Lowenfield from submitting an Elections Report to the Elections Commission under Article 177 (2) of the Constitution containing votes which are not credible. David believes that GECOM breached the Order when it failed to determine the final credible count. While the CEO, in his June 13th Report on the national recount, had indicated that the elections were not credible due to 4,864 cases of voter impersonation and more than 2,000 anomalies, Justice Singh, on Monday, asserted that the commission does not have the powers of a Court of Law to examine and re-examine witnesses or to procure official documents to determine the truth of the allegations contained therein. Only the High Court, she said, could determine the validity of an election under Article 163 (1) (b) of the Constitution.

As a result of that decision by the Chair, David is seeking a declaration from the Appellate Court that the Elections Commission has failed to act in accordance with the terms of Order No. 60 of 2020 and the amended order, published in the Official Gazette on May 4 and May 29, 2020 respectively. That declaration is being sought on the basis that the Elections Commission has failed to determine a final credible count and or the credibility of the result of the elections as required by the Order. She also wants an order that there be an interpretation of the words “more votes are cast” in Article 177 (2) (b) of the Constitution of Guyana.

ORDER FOR A CREDIBLE COUNT
In her sworn affidavit in support of the Notice of Motion, David identified herself as a North Sophia, Georgetown resident – a registered voter in the Electoral District No. Four. David said as a voter, it was her expectation that within a few days of the elections, the results would have been declared by GECOM, however, based on contentions that the declarations of certain electoral districts were lacking in credibility, GECOM undertook a national recount.

That recount of all votes cast in the 10 Electoral Districts, was triggered by a gazetted Order pursuant to Article 162 of the Constitution and Section 22 of the Elections Law (Amendment) Act. Paragraph 14 of the amended order, David through her lawyer pointed out, states:

“The commission shall, after deliberating on the report at Paragraph 12, determine whether it should request the Chief Elections Officer to use the data compiled in accordance with Paragraph 12 as the basis for the submission of a report under Section 96 of the Representation of the People Act Chapter 1:03, provided that the commission shall, no later than three (3) days after receiving the report, make the declaration of the results of the final credible count of the elections held on the 2nd day of March, 2020.”

David maintained that the Orders had the primary objective of determining from the recount process, “a final credible count” to make a declaration of the results. In the Order, the commission, David posited, established the criteria or standard for determining the “final credible count.” In keeping with the established criteria, there was a reconciliation of the ballots issued with the ballots cast – destroyed, spoiled and stamped.

Further, the counterfoils or stubs, authenticity of the ballots, the number of voters listed and crossed out as having voted, the number of votes cast without ID cards, the number of proxies issued and utilised, the statistical anomalies and occurrences recorded in the Poll Books, were taken into consideration, and included in Observation Reports generated during the recount process.

It was noted too that in accordance with the Order, objections were made in respect of ballot boxes in every electoral district by agents of political parties – and those objections were also included in the Observation Reports.

In keeping with that Order, the CEO, on June 13, compiled a report but indicated that the elections were not credible as result of the anomalies cited in the Observation Reports. “Finally, the summation of anomalies and instances of voter impersonation identified in Districts [One to 10] clearly does not appear to satisfy the criteria of impartiality, fairness and compliance with provisions of the Constitution and the Representation of the People Act, Chapter 1:03.

Consequently, on the basis of the votes counted and the information furnished from the recount, it cannot be ascertained that the results for the Districts [One to 10] meet the standard of fair and credible Elections,” the CEO had said in his report.

David said notwithstanding the report of the Chief Elections Officer, the Elections Commission, on June 16, indicated that it did not have the legal authority to determine the credibility of the Elections held last March.

The case will come up in the Court of Appeal today (June 19, 2020) at 13:30hrs.