Statements of Poll (SOPs) contain – among other information – the number of votes each contesting party received at the close of poll at the respective polling stations on election day. Copies are required to be posted outside voting sites and made available to party agents, observers, and other stakeholders. They are essentially regarded as public documents, and therefore, any attempt to keep them hidden is ‘perverted and wrong’. At least this is according to the Attorney General and Minister of Legal Affairs, Anil Nandlall.
The AG said that the Chief Elections Officer (CEO), Keith Lowenfield, and the Guyana Elections Commission’s (GECOM) refusal to make those documents available to the Director of Public Prosecution (DPP), Shalimar Hack, and the Police Commissioner (Acting), Nigel Hoppie to serve as evidence in ongoing electoral fraud investigations, is ‘untenable’. Lowenfield and several GECOM officials have already been slapped with charges over their conduct during those elections.
Hack and Hoppie then submitted a request to access those documents that were in the care of the Supreme Court’s Registrar. Lowenfield sought to be named a party to those proceedings but was denied by the CJ.
Nandlall, during an interview shared on his Facebook page yesterday, argued that while Lowenfield is the legal custodian of all election materials, that does not make him the “exclusive keeper” of the documents.
The AG said that even if the CEO indeed possessed such power, the police could have accessed those documents by virtue of a search warrant.
“Under the law, the police has power by virtue of a search warrant, to enter into any place and to seize property, in particular, property of an evidential nature. So, the police could have gone that route. Mr. Lowenfield, I believe, was written to and a request was made for those Statements of Poll. That request was denied by Mr. Lowenfield, who claimed that he has some right to keep it for safekeeping. Yes, the Chief Elections Officer has a right in law to keep all election documents. He is the official, legal custodian of all election materials. So, he’s right, but it doesn’t mean that he is the exclusive keeper of the documents. Obviously, in appropriate cases, he would have a duty devolving upon him by law, to part company with copies of those documents if they are required to be used in another forum,” the AG said.
Nandlall went on to say that evidence that is relevant is always admissible in a court of law, and a person who is in charge of prosecuting an offense before a court of law is entitled to possession and use of that evidence wherever it is located to establish that offense. This, he said, is a fundamental tenant to the rule of law and the criminal justice system.
He noted that all those principles concatenate to justify that the Chief Justice’s ruling was ‘very sound in law’.
“So, I am not surprised that the ruling is in the manner in which it came down. That was always the legal position. It was untenable for Mr. Lowenfield to event think that he has exclusive control of, and possession of these documents to the exclusion of the World,” he said.
The AG added that the ruling is appealable and Lowenfield is free to do so, but it is imperative to note that the CEO was not named a party to those proceedings. Nandlall reminded that Lowenfield applied to be joined as a party, but that was never done.
“He was never joined because the Chief Justice went directly to the merit…So, he was never made a party. So, I suppose he would have to appeal not being made a party, and then that court will have to – if that court feels he is right – direct that he be made a party. And only then, I suppose his case will have to be heard all over again. But by that time, the process would have been completed, because I assume the DPP will be moving swiftly to secure the Statements of Poll.”
