APNU’s Elections Petition will fail- Nandlal

Attorney General and Legal Affairs Minister Anil Nandlall, SC,  in submissions to Chief Justice Roxane George, SC, has submitted that the first elections petition filed on behalf of the APNU/AFC is destined to fail.

He submitted that this is so because it contains no evidence upon which the results of the March 2020 General and Regional Elections can be invalidated.

Nandlall is one of the 13 respondents in the petition filed by Claudette Thorne and Heston Bostwick.

He has laid over written Anil submissions to the court ahead of a hearing set for April 7, 2021, at the High Court in Demerara.

In their written submissions, the petitioners are challenging the validity of the March 2020 General and Regional Elections which ended after an exhausting five months with the PPP/C being declared winners and Irfaan Ali being sworn in as Guyana ninth executive President.

The petitioners are contending that Section 22 of the Elections Laws (Amendment) Act is unconstitutional and Order No. 60 of 2020 is invalid, null, void, and of no effect.

Thorne and Bostwick have also argued that the declarations of the Returning Officers could not be set aside and that the actions of the Guyana Elections Commission (GECOM) were unlawful and encroached upon the High Court’s jurisdiction under Article 163 of the Constitution.

Order No.60 of 2020 was created by virtue of Article 162 (1) (b) of the Constitution of Guyana and Section 22 of the Elections Laws (Amendment) Act to resolve irregularities, discrepancies, and anomalies occurring in the elections process and to determine a final credible count.

According to the Attorney General, the petitioners have failed to discharge the heavy burden of rebutting the constitutionality of Section 22 of the Elections Law (Amendment) Act, neither have they been able to establish that Order No. 60 of 2020 was in any manner whatsoever ultra vires or unlawful.

Nandlall added that this election petition is purportedly filed under Article 163 of the Constitution and the National Assembly (Validity of  Elections)  Act.

Nandlall, however, contends that there are no material facts in this election petition and or no foundation being laid to establish the grounds upon which the March 2020 election can be vitiated.

The Attorney General reasoned that Article 163 (1) of the Constitution speaks to the jurisdiction of the High Court to determine questions relating to membership of the National Assembly and elections.

Relying on the case of Esther Perreira v Chief Election Officer et al 1998, Nandlall pointed out that retired Justice Claudette Singh examined Article 163 of the Constitution and formulated that there is a two-pronged approach in determining whether an election should be vitiated.

The Attorney General pointed out that Justice Singh held that there must be a distinction as regards the question relating to the unlawful conduct of an election and an unlawful act or omission which has affected or may have affected the results of the elections.

He, therefore, said that the petition filed by Thorne and Bostwick does not seek to challenge the conduct of the March 2020 election, but rather contends that an unlawful act or omission has affected or may have affected the election results.

“That unlawful act is Order 60 and the recount process which flowed therefrom,” the Attorney General added.

“A Petition that challenges an election on this ground must not only establish that the challenged act is unlawful but that it has or may have affected the result of the elections” Nandlall said.

He added “It is already submitted that Order 60 and the recount process are valid and lawful. Secondly, this Petition fails to establish any satisfactory evidence that the said Order 60 and the recount process have affected or may have affected the result of the election,”

According to him, all the recount process did was recount ballots cast on voting day.

Nandlall says that there is no evidence before this court impugning those ballots so as to discount them from being recounted.

“There is no evidence of any variation between the first count which took place at the end of poll and the count which took place under Order 60.”

In concluding, the Attorney General held, “Even if it is found that the recount and Order 60 are unlawful there is still no evidence that either or both of them materially affected the results of the elections.  This petition is destined to fail.”

Monica Thomas and Brennan Nurse have appealed the dismissal of the election petition they filed on behalf of the Coalition.

They are asking the Guyana Court of Appeal to set aside and or reverse the decision of the Chief Justice. In their Notice of Appeal, the petitioners are contending that the Chief Justice misdirected herself and made several errors in law.

On January 18, 2021, Justice George dismissed the elections petition for non-compliance with effecting service on the second-named respondent former President David Granger in accordance with Section 8 of the National Assembly (Validity of Elections) Act and Rule 9 of the National Assembly (Validity of Elections) Rules.