The elections petition
February 1, 2001
The decision in the elections petition has already attracted a lot of comment. There may be one or two other general points worth noting.
First must be the extraordinary amount of time taken to hear the petition and to give decision. A legal action of this kind by its very nature requires an expeditious hearing and an equally expeditious decision. It was incumbent on the judge to retain tight control of the case, to resist adjournments, to repel delaying tactics of any kind and to come up with a decision within two to three months of the elections. To allow the case to drag on for well over two and a half years and then to take several months to give decision, and to do so a couple of months before the (re)scheduled date for the next elections is unacceptable. It is indeed almost a denial of justice and the judge must bear primary responsibility.
The case presented for the first two respondents, the Chief Election Officer and the Chairman of the Elections Commission, dragged on for a very long time. Dozens of witnesses were called but much of what was said was not helpful to the case of those two defendants and it was not clear if statements had been taken in advance to ascertain what they were likely to say. Presumably the broad strategy must have been to rebut, where possible, evidence of irregularities led by the petitioner and to show that voting was peaceful and orderly and that the statements of poll were completed and signed at the various polling stations after voting and were sent in with the ballots and the ID cards. But it gradually became clear that some of the statements of poll had been lost and had to be rewritten and, amazingly, that some of the presiding officers, who presumably were people of a certain level of education and who had been trained as to their duties, had not signed the statements of poll or could not say if they had done so. Moreover, some of them had also not dealt with the ID cards as they had been instructed to do and many ID cards were missing.
The erratum signed by the chairman of the Caricom Audit Team, Justice Cross, showed that the missing ID cards for Region 6 were 2,562 and not 29,494. However, this erratum was not admitted in evidence.
At the end of the day, the irregularities proved were held not sufficient to set aside the results and the decision turned on a technical point, namely that the requirement that voter ID cards be used, which had been agreed by all the parties, was unconstitutional. An appeal has been filed on this issue. A cross appeal has been filed asking the court of appeal to declare that the elections should also be vitiated on the grounds of massive irregularities.
An elections petition under proportional representation is not the same as in a constituency system where a challenge is made to one candidate and if that is successful a by-election is ordered in that constituency. In l964 when proportional representation was introduced the National Assembly (Validity of Elections) Act was introduced to provide for elections petitions under the new system. This law was amended by the then government in l968. The burden of proof required of the petitioner in the amended Act is difficult to discharge, and as commentators at the time pointed out the amendments were clearly made to make it difficult to succeed in any challenge to the highly irregular elections that took place later that year. That law still exists and governs election petitions. Another ground, a constitutional requirement, tht the election was not "lawfully conducted", does not it seems depend on the result being affected but on substantial departures from the law.
Most observers agree that the procedures up to and including the close of polling in l997 were acceptable. People cast their votes in the presence of officials and party scrutineers and the votes were counted at the place of poll also in the presence of party scrutineers, an essential safeguard against rigging. All the logistical and other problems occurred thereafter.
The present Elections Commission is well aware of this and will no doubt place great emphasis on the post count procedures. These will include the posting up of the statement of poll for each station outside that station and the collection of the ballot boxes with the statements of poll, duly signed. It is important to have presiding officers of adequate competence and civil society can help by offering its services in this area, as has been requested by the Chairman of the Elections Commission. Some of the irregularities that took place in l997 were clearly due to incompetence or carelessness.
Elections in Guyana are still clouded by what took place in l968, l973, l980 and l985 and the psychosis of distrust that left behind, which has affected not only those who suffered from those malpractices but those who perpetrated them. It is vitally important that Chairman Joe Singh and his team make the coming elections as efficient as possible to provide no legitimate ground for complaint.
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