Cynicism in relation to elections in Guyana did not begin with the debate as to whether the majority of 65 is 33 or 34 in relation to the no confidence motion passed against the APNU+AFC Government by the National Assembly on December 21, 2018. It began since mid-2017 when President Granger rejected three lists of names submitted by Opposition Leader Bharrat Jagdeo for President Granger to choose one as Chair of GECOM, in accordance with the Constitution. The President’s unilateral appointment of 84-year old retired Justice James Patterson as Chair, created the impression among many that efforts would be made to manipulate the electoral process.
Notwithstanding that the CCJ ruled in favour of the Opposition’s challenges to the decisions of the Court of Appeal in both cases relating to the no confidence motion and the appointment of the GECOM chair, the Government defied the CCJ that elections should be held by the due time, that is, September 18, 2019, and delayed them until March 2. The tabulation irregularities, world-wide condemnations, Caricom fiasco, internal tensions and more, have caused the words of Prime Minister of Trinidad and Tobago, Dr. Keith Rowley, when speaking about Guyana elections, to resonate among many Guyanese: “I have a feeling that this is not going to end well.”
The amended Order made by GECOM extended the time for the ongoing recount to June 13. It repeats that the CEO is required to present to GECOM a report of the “matrices” of the recount together with a summary of the observation reports. No date is fixed, so it is assumed that this is required to be done on June 13. As in the original Order, GECOM then has a discretion, after deliberating on the CEO’s report “to determine whether it should require the Chief Election Officer to use the data compiled…..as the basis for the submission of a report…” Thereafter, GECOM gives itself three days to issue a declaration.
Therefore, between the time when the CEO submits his initial report of the “matrices” and the observation, and the time when GECOM determines whether the CEO is to use the data as the basis for the submission of a report under section 96 of the Representation of the People Act, no time limit is fixed. Not only is no time limit fixed, but GECOM clearly gives itself a discretion as to whether the CEO should use the data in his initial report as the basis of his report under section 96. Unlike the Recount Order, section 96 gives no discretion to the CEO in preparing a report and no discretion to GECOM in utilizing the report for a declaration. It provides that the CEO “shall” prepare the report which “shall” be the basis for GECOM’s declaration.
This provision in the original Recount Order now assumes importance having regard to the emerging dispute over GECOM’s responsibilities in connection with the allegations of the dead and migrated having voted in the elections, as well as the ballots of the disciplined services being deliberately not stamped.
In a letter of May 27 to SN, Mr. Basil Williams S.C., the Attorney General argues that “it is for GECOM to resolve the irregularities, discrepancies and anomalies contained in the observation reports.” He relies on the recital in the Order that provides for “….the reconciliation of the ballots issued with the ballots cast, destroyed, spoiled stamped…..” Two of APNU+AFC appointed Commissioners, Desmond Trotman and Vincent Alexander, have argued that GECOM must investigate the irregularities which may be claimed in the observation reports.
Alexander has gone further and revealed that GECOM has written to the immigration department enquiring whether migrated persons who are claimed to have voted were in Guyana on election day. If this is so, the clouds on the horizon are signaling that GECOM will initiate an investigatory process into the assertions and allegations made by APNU+AFC during the recount process.
Whether or not the investigation will be decided to be carried out even if the number of votes challenged would not affect the outcome of the elections even if proved to be invalid, what form and how long this investigation will take, whether or not GECOM will rule that the evidence it receives is of a sufficient probative value to rule the votes invalid, or whether it has the power to make such a determination, are all questions at large. What it certainly means is that election results will not be given by mid-June. But what happens if GECOM decides that it cannot or would not issue a declaration? The clouds on the horizon provide no answer.
In several elections since 1992, won by the PPP, APNU+AFC, in its earlier formations of the PNC and PNCR, has brought cases after the elections results were declared but before the swearing in of the President, to quash the declaration of the results. In the elections immediately after 2001, the case was heard to conclusion while the swearing in of President Jagdeo was delayed until the conclusion of the case which the PNCR lost. The time gap between the conclusion of the recount and GECOM’s deliberations, provide ample opportunity for any contesting party to launch legal proceedings preventing or challenging a declaration, occasioning further, extensive, delay.