Chief Justice throws out APNU/AFC election petition
Declaring that the Guyana Elections Commission acted in full compliance with the Constitution of Guyana and electoral laws in its conduct of the March 2020 General and Regional Elections, Chief Justice Roxane George, SC, on Monday dismissed APNU/AFC’s election petition in which the party was seeking to invalidate the results of those elections.
Referred to as petition #88, this was the party’s only surviving election petition in which it was seeking to invalidate the results of the elections on the grounds of serious non-compliance with the Constitution of Guyana and electoral laws as regards the holding of the elections.
The Chief Justice’s ruling would come two weeks after she concluded hearing arguments in the case filed by petitioners Claudette Thorne and Heston Bostwick. They had argued that Section 22 of the Election Laws (Amendment) Act (ELA) and Order #60 of 2020, otherwise known as the recount order are unconstitutional, thus resulting in breaches and violations by GECOM with its conduct of the elections.
The recount order was created by GECOM pursuant to Section 22 of the ELA and Article 162 of the Constitution to facilitate the recount of all ballots cast in the March 2020 General and Regional Election. The intent of Order #60 was to resolve irregularities, discrepancies, and anomalies occurring in the elections process and to determine a final credible count.
In delivering the highly anticipated ruling via live-stream, Justice George held that neither Section 22 of the ELA or Order #60 or not ultra vires of the Constitution. The Chief Justice said, “My analysis of the authorities cited has led me to the ineluctable conclusion that Section 22 is not ultra vires of the Constitution. And I so hold, there has been no violation of the doctrine of separation of powers.”
“Section 22 is meant as an aid to the process to permit a determination of a result. It does not permit usurpation of the High Court’s jurisdiction under Article 163 [of the Constitution] at all. Section 22 provides the parametres for its efficacy, and the power granted therein is not arbitrary. It includes sufficient mechanisms to establish that Parliament did not surrender or abdicate its powers. Thus, I hold that there was a lawful delegation of power as provided for in Section 22 so that GECOM could independently and properly control the election process…”
According to Justice George, the power set out in Section 22 is clearly and sufficiently circumscribed to not run afoul the doctrine of the separation of powers.
She held that the conditionalities of delegated legislation which are evident in Section 22 are that (a) it authorizes only the making of subsidiary legislation, in this case, Order #60 (b) the power is only applicable when it appears to (GECOM) necessary or expedient for removing any difficulty (c) once Parliament is in session the Order must be subject to a negative resolution of the National Assembly (d) the order cannot be made after three months of the expiration of an election and (d) the only time this power is without supervisory jurisdiction of Parliament is when Parliament is not in session, and that time is limited to three months from the date of the election.
In upholding the constitutionality of Order #60, Justice George noted that “…it is not ultra vires the Constitution or Section 22. A combination of Article 162 (1) (b) and Section 22 conferred a power on GECOM to issue this Order if GECOM considered it necessary or expedient to ensure impartiality, fairness, and compliance on part of persons exercising powers or performing duties on its behalf as regards to the election process and the declaration of the results of the election.”
The Chief Justice underscored that a recount of votes is not alien to the election process, adding that GECOM has to be in control of the election process until it is satisfactorily completed.
“This is the ultimate power that GECOM has pursuant to Article 162. Thus, Order #60 does not confer any additional powers on GECOM, but simply alter the procedure to arrive at the result that the Representation of the People Act requires. While the procedure [in this case] was different, the aim and objective were the same. That is, to count the ballots and determine the votes casts for the list of the political parties who contested the elections, “Justice George added.
Having regards to the foregoing, the Chief Justice dismissed the election petition.
She informed the parties that the High Court will issue the necessary certification pursuant to the National Assembly (Validity of Election) Act. Justice George ordered that the Statements of Poll (SoPs) and Statements of Recount (SoRs) which were handed over to the High Court by GECOM are to remain in the custody of the Court’s Registrar until all rights to appeals have been exhausted in this matter.
The Chief Justice has now dismissed all elections petitions filed on behalf of APNU/AFC challenging the results of the March 2020 General and Regional Election. Petition #99 was dismissed in January 2021, for non-compliance with effecting service on the second-named respondent, former President David Granger.
