Cannot televise recount; will not release ‘public’ SoPs – Retired Justice Claudette Singh’s list of undoable

April 26, 2020: Another weekend meets the uncertain state of things at the Guyana Elections Commission (GECOM) which, as is ever hopeful, will move toward certainty when word is received from Caricom on the latest fielding of observers. A Caricom team previously came on an emergency basis into the country and then departed after the earlier recount was stalled. Their understandings of the ‘Guyana situation’ led Caricom Chair Mia Mottley to speak of ‘forces’ not in favour of the recount and Trinidad and Tobago Prime Minister Keith Rowley, later, to warn in a broadcast comment that it was ‘not going to end well’.  Since April 5, when the Court of Appeal ruled that GECOM had the independent authority to follow the law in carrying out its constitutionally-mandated function, there has been much discussion and several meetings about plans to carry out the recount. This has constantly slipped into farcical stages, through now abandoned proposals for a 156-day recount period by GECOM CEO Keith Lowenfield, and a 14-day quarantine of international observers for COVID-19 from National COVID-19 Taskforce Chair, Moses Nagamotoo – the latter was subsequently altered to allow for testing of the observers prior to arrival, but not before a slew of comments on social media and in the media.

Retired Justice Claudette Singh

The latest word coming out of GECOM suggests that the time period of the recount of 2339 ballot boxes remain porous to take at least 25 days. This allows for even more significant uncertainty as to whether international observers will be able to come without more definite timelines. A date for the recount is yet to be confirmed.

Efforts toward televised recounting as well as release of Statements of Poll (SoPs) from Region Four (Demerara-Mahaica) and other SopS, currently said to be in the secretive possession of GECOM CEO, Keith Lowenfield were derailed after GECOM Chair retired Justice Claudette Singh cast a tie-breaking vote against its release. She gave a consistent ‘no’ to rule against all ten of the motions by GECOM Commissioner Sase Gunraj on behalf of the PPP/C.

In effect, the SopS are already public documents being made into secrets by GECOM. These documents have been posted publicly at each polling stations and are in the possession of various parties including the main political parties following Guyana March 2 regional and national elections. The allegedly fraudulent declarations by Returning Officer for Region Four, Clairmont Mingo, have been widely reported and feature in much anguished and comical narrations of the ‘Guyana situation’. Releasing the SoPs which are in Lowenfield’s possession would do much clarity to the situation and remove doubt as to what transpired. GECOM Chair voted against this release despite the significant outcry and calls by many. Commentators and key stakeholders say it is within her power constitutionally to release the SoPs aside from any need to rely on the precedent as recent as the 2011 elections when GECOM released the SoPs.  

The voting by the GECOM Chair against the release of the SoPs and the nine other motions tabled by Commissioner Gunraj left Opposition Leader Bharrat Jagdeo to proclaim that Justice Singh rejection of the PPP’s motions revealed “where she stands” to the public’.

PPP/C attorney and former Attorney General, Anil Nandlall, in a statement on Saturday called out the Chair’s rejection of the motions, noting: “Justice Claudette Singh’s justifications for rejecting our ten motions, put by PPP Commissioners at the last GECOM meeting, are simply incredulous”. While the PPP/C has released its copies of the SoPs, the incumbent APNU/AFC is yet to release or make any statement about the SoPs in its possession. The secrecy being given to these documents held officially by GECOM has been extended through the tie-breaking vote of the GECOM Chair, Retired Justice Singh.

Among calls for the release by GECOM are those on social media and letters to editors in Guyana media. Kamal Ramkarran, in one such letter, noted:

‘Simply releasing those Statements of Poll, which are public documents, would let us know the basis for a genuine declaration of results. Nothing prevents the Elections Commission from doing this. But, as we are here, a public broadcast will ensure that the recount is done transparently and, if it is not, we will all know why.’

Melinda Janki, on social media and also in a letter to the editor in Guyana newspapers, noted: ‘The confusion surrounding the recount has distracted attention away from the fact that the Guyanese people are waiting for the returning officer for region 4 to add up the votes. Section 84(1) ROPA says, “As soon as practicable after the receipt of all the ballot boxes and the envelopes and packets delivered to him in pursuance of section 83(10), the Returning Officer shall, in the presence of such of the persons entitled under section 86(1) to be present as attend, ascertain the total votes cast in favour of each list in the district by adding up the votes recorded in favour of the list in accordance with the Statements of Poll, and thereupon publicly declare the votes recorded for each list of candidates.” […].  There is also a court order instructing Mr Mingo to comply with section 84.’ 

Retired Justice Claudette Singh as GECOM Chair, however, exclusively noted to the state-owned Guyana Chronicle, her defence in voting against the motions by stating that since a recount is underway, the release of the SoPs will not serve any purpose. She also stated that Section 90 of the Representation of the People Act provides for secrecy of the tabulation of ballots, and that on this basis she cannot allow live streaming of the recount process.

Anil Nandlall, termed as baffling the Chair’s justification for throwing out the proposal that sought the release of the SoPs to GECOM Commissioners, noting that the SoPs are not the private property of Chief Elections Officer (CEO) Keith Lowenfield, who is in possession of the documents. Nandlall, said the Commissioners have a legal entitlement to them. He pointed out that the SopS are not secret since they were posted at polling places across the country after the ballots were counted. Nandlall questioned: “As Chairperson of the Commission, is Justice Singh not even curious to see what those SoPs say in relation to the fabricated spreadsheet which Mingo used as the basis of his tabulation? This must be boggling to the rational mind. The same arguments apply, a fortiori to her refusal to have Region Four ballots counted off early rather than stretch it until the end of the exercise.”  He noted it to be imperative that the GECOM Chair reconsiders her position lest the recount process evoke greater controversy than it was intended to resolve.

Nandlall called Justice Singh’s reliance on Section 90 of the Representation of the People Act to reject the party’s proposal to live stream the process both convenient and preposterous. The Chair’s convenient reliance on Section 90  to reject the motions missed that the recount is being done under Section 22 of the Election Laws (Amendment) Act and Article 162 (1) (b) of the Constitution. Both sections empower GECOM to issue such instructions and take such actions as appear to it necessary and expedient to ensure impartiality and fairness. He noted that  ‘in rejecting those proposals the Chairperson herself is tainting the process with partiality and unfairness. Significantly, the Chairperson herself in her written submissions to the court highlighted the importance of GECOM and the electoral process enjoying public confidence so that the election results would be accepted by all.”

Nandall added:
“The truth is that a majority of the electorate does not trust GECOM. After what transpired, there is sound basis for this mistrust. The live streaming of the process would contribute tremendously to boosting public confidence in the process.,” 
“After what Mingo did and the Chairperson’s repeated public commitment to act fairly and transparently, how can she reject a proposal to allow the Audit Office of Guyana or a private audit firm to aid and scrutinise the exercise, but rather choose to support highly toxic persons from the Secretariat whose conduct have been condemned by all the observer teams,  to conduct the recount exercise. It is difficult to defend an argument that she is not part of the same design.”