Election petition can use audit findings
February 24, 1998
The Court hearing the election petition to be filed during the course of this week by the People's National Congress (PNC) challenging the December 15, elections results will have the benefit of the findings of the team which will conduct the audit of the elections.
However, legal observers are unsure what its chances of success will be given the marked lack of success of previous challenges to elections held under the 1980 Constitution.
None of the challenges has gone beyond the stage of procedural arguments, with legal observers unsure whether this was due to the approach taken by the attorneys involved or the interpretation of the electoral laws by the judges who heard the cases. Some legal analysts, however, feel that it is possibly a combination of both.
The enabling legislation which would make the findings available is due to be tabled in the National Assembly as a matter of urgency when the Parliament is convened later this month.
In the absence of such legislation the findings of a body unrelated to the Court would not be admissible.
One aspect of the findings which will be of crucial importance would be its determination of the level of irregularity either countrywide or in a specific region(s).
To succeed in getting the Court to order new elections nationwide, the PNC would need only to prove that the irregularities were extensive in electoral districts.
Alternatively, because Region 4 accounts for about 50 per cent of the electorate, the PNC would need only to prove that there were significant irregularities there that the results did not accurately reflect the will of the electorate for the Court to order fresh elections for that region.
The enabling legislation, however, does not remove the obligation of the Court from examining the evidence on which the audit team based its findings to determine whether the findings could have been reasonably drawn from the documentation available to it.
One of the mandates given the audit team is to determine the authenticity of the documents related to the electoral process.
The audit team will be provided with the authority to compel all the election officials to cooperate with it and to answer all its questions. This, legal observers say, will make available to the PNC evidence (oral and written) which it might have been unable to provide in support of its petition when it is filed later this week.
Legal observers say that two things need to be noted, and those are that the PNC would not need to show that there was any fraudulent intent in the commission of the irregularities and that the Court does not have to accept the findings of the audit if its perusal of the documents leads it to a different conclusion.
They note too that the ruling could be appealed if the lawyers for the PNC felt that there was merit in doing so.
An elections petition, legal observers say, calls for meticulous preparation and can fail on a number of technicalities before the case reaches the stage where it could be determined on the merits of the evidence placed before the Courts.
The proceedings are heard by a judge of the High Court and are brought under the provisions of the National Assembly (Validity of Elections) Act, Chapter 1:04. This was the process used by Dr Rupert Roopnaraine and Eusi Kwayana to challenge the December 1985 elections, when Desmond Hoyte was elected as the presidential candidate of the PNC.
Earlier, in August, Hoyte, as prime minister, had succeeded to the presidency on the death of then president, Forbes Burnham. That challenge was struck out on procedural grounds as the petitioners had not joined in the petition the other parties which had contested the elections and had been allocated seats in the National Assembly.
Dr Roopnaraine and Kwayana in support of their challenge contended that the then Elections Commission had "failed to exercise general direction and supervision over the registration of electors and the administrative conduct of the elections, as required by Article 162 (1) of the Constitution." They claimed that at the time of the compilation of the register of voters, the Elections Commission had not been properly constituted and had not been functioning. Further, they argued, that in assigning responsibility for the elections to the National Assembly and Local Democratic organs to the Minister of Home Affairs, Article 162 of the Constitution was contravened.
They also contended, that, in assigning responsibility for the elections to the Home Affairs minister, the administrative conduct of elections was effectively under his supervision, control and direction and that of the Chief Election Officer, instead of the Elections Commission. Other grounds included charges that the PNC, which was then the party from which the government was formed, had misused the resources of the state and had thus undermined the fairness of the elections process.
Other grounds of their petition were the unlawful non-admittance and eviction of polling agents from polling stations in several electoral districts and the counting of ballots in a such a manner as to prevent the monitoring of the counting by counting agents.
Amendments to the electoral laws introduced at the 1992 elections have made counting at the place of poll mandatory, and requires that the statements of poll be signed by all those persons who witnessed the count on behalf of the contesting parties.
Additional amendments to the electoral laws made for the conduct of the 1997 elections also made the Elections Commission solely responsible for the supervision, control and direction of the elections including those functions performed by the Chief Election Officer.
The failure of the President to initiate rules for the commission, cited as one of the grounds in support of the 1985 petition, is still to be addressed by the National Assembly.
A previous challenge to the assumption of the presidency by then president, Forbes Burnham, also failed, and was cited by lawyers for the PNC during the hearing of Chief Justice Desiree Bernard in January this year arguing for writs of certiorari and prohibition to be issued against President Janet Jagan, Elections Commission Chairman, Doodnauth Singh SC, and Chancellor of the Judiciary, Cecil Kennard OR CCH. On this occasion, however, lawyers appearing for the PNC argued that the judge who had heard the case involving former President Forbes Burnham had erred.