So, let’s talk.
As you might be aware, the trial of nine persons into allegations of conspiring to declare fraudulent elections for the 2020 General and Regional Elections has commenced before the magistrates’ court in Georgetown. These matters have been dubbed the elections fraud case. The accused persons, as is common in our country, have not been spared the condemnation and conviction of large sections of the public with the aid of the politicians and their sympathisers, persons who fancy themselves social media influencers, and certain media houses which- by their sustained conduct and manner of reporting- care little for balanced and objective reporting, especially of controversial matters. The thing is, my people, the persons who and media houses which have brought about this state of affairs are well aware that a conviction by the public and by the media is difficult to shake in instances when the proper administration of justice finds otherwise.
The Vice President (VP) at his press conference yesterday made certain statements about the trial; and these statements have strong negative implications for the defendants, the magistrate presiding over the matter, the defence attorneys, and the administration of justice in our ‘democratic society’. The VP is one of the most influential voices in our country; and his voice carries across the Region and settles in the International Community. There is a certain responsibility of fairness and honesty which attends to this kind of power and influence; a responsibility which, unfortunately, the VP oftentimes disregards outright or observes in the breach.
Sadly, the most recent offence against this responsibility- the misuse of the VP’s power and influence- comes on the eve of Emancipation. The utterances of the VP follow:
VP: “…and it’s crucial that we pursue this pathway (invitation of the International Observers to observe the trial) if for only one reason, to ensure that people don’t act or public officers do not act with impunity in the future where they are vested with either a responsibility by the law or the constitution and they…in this case, in a partial manner discharge that responsibility, and in a corrupt manner. And therefore, it’s crucial that we have the international community looking at that.
The defence lawyers for the people who have been charged have tried all sorts of delaying tactics and they have succeeded thus far to have the matter not heard. The last attempt was dismissed by the Chief Justice and the trial has started. And you will see a similar pattern now and the frustration expressed by the prosecution that every, in fact on numerous occasions uncalled for that the defence lawyers are trying to stall the trial by making frivolous objections and often these objections are entertained.
It is crucial that the records be in the public domain. They are not going to be kept in the court so that what is presented and the testimony of the witnesses will be available in the media and elsewhere so that when ultimately it gets to the CCJ that the full picture of the testimony discounting all of the objections and suppression of the evidence that that would be available to the judges; and that there would be no doubt as to what was presented, the fullness of the case, and it’s a robust case.”
These matters are public proceedings and the Court has not barred anyone from attending. The single hiccup that anyone who wants to attend would encounter, as I see it, is space to accommodate everyone who might want to. The International Observers or International Community need no special invitation by the VP or the government to, like anyone from the public, sit in these proceeding if they so desire, once the physical space is there to accommodate them. Several persons have been attending virtually as well. The VP’s invitation of the International Observes/Community is, by his own words, for pursuing a certain interest and procuring a certain outcome- “to ensure that people don’t act or public officers do not act with impunity in the future where they are vested with either a responsibility by the law or the constitution and they…in this case, in a partial manner discharge that responsibility, and in a corrupt manner.” The inference here, respectfully, is that the presence of the International Observers/Community should have the effect of ensuring that the Court convicts the accused. This is the only way that the lesson prescribed by the VP can be learned- by conviction of the accused. This, you would agree, is more than a veiled direction to the Court that instead of justice as determined by the Court upon its receipt of all the evidence and its deliberations, the Court is expected to convict the accused so that those coming behind them would be authoritatively reminded that they need to stay in line.
As one of the defence attorneys in this matter, and one who has been with these proceedings from the outset, I find it highly offensive and resolutely reject the assertion by the VP that the defence attorneys have deliberately delayed these proceedings and are now further frustrating the process. Ahead of the commencement of these proceedings these matters were before several magistrates, and the prosecution applied before these several magistrates to have the matters heard summarily (before the magistrate) instead of indictably (before a judge and jury) as they were laid. The accused had a right to respond to these several applications, and they genuine felt that since they were accused of conspiring to defraud the public of the true outcome of the elections and offending against the public confidence in the electoral process that they should be tried before a judge and jury (as representative of the public against which they are accused). Both the prosecution and defence were required to lay before the various courts at various times legal submissions on these applications by the prosecution. These issues took time to ventilate and for the courts to resolve, and the times were different for the various courts. It is important to mention that we appealed none of the Courts’ rulings on these matters even when we disagreed with them; the prosecution on the other hand did appeal in the instance it disagreed and this appeal is still pending.
After the forum for these trials was determined the prosecution then applied to the various courts and wrote to the then Chief Magistrate to have all of the matters presided over by one magistrate. This was granted and we did not protest this. The prosecution then disclosed boxes of documents it intended to rely on and which were so much that they took up virtually half of the tray of the canter they were brought to court in. these documents were arranged in a haphazard manner and without regard to which of the specific matters they applied. The Court ordered that this be rectified by the prosecution and it took time. And, as you would imagine, the defence needed time to review the plentiful documents, take proper instructions from the clients, and prepare for trial. We then formed the view during our trial preparation that certain documents in the possession of GECOM were necessary for a fair trial of the accused. These documents were protected by the law from disclosure and use in any court proceedings and we made an application to the High Court citing the application of that law as unconstitutional in the circumstances and it affects the accused ability to properly defend themselves. We did not prevail in this application and we did not appeal the ruling of the Chief Justice.
The trial commenced Monday of this week, and from the commencement of the trail, half of the already elaborate evidence of the prosecution’s first witness was not contained in the statements disclosed to us. We took objection to this, as we properly should. The prosecution sought to justify this by saying it is a mere amplification of matters already contained in the statements. We disagreed with this. And I personally asked the Court to consider the logistical challenge that would be occasioned by our having to take time to get further instructions from our clients after every of the very many witnesses the prosecution have amplify their evidence in the elaborate fashion of its first. I further observed that supplementary witness statements could have been prepared containing these other matters and disclosed to us ahead of trial so as not to interrupt the smooth flow of the evidence. We even offered to that this be considered now even though the trial has started. This manner of presenting the evidence by the prosecution was compounded by several disparaging remarks and inadmissible opinions of the two witnesses. Further the witnesses sought to say things that no legal foundation was laid out for; and the prosecution implored the magistrate to take this evidence nonetheless on the ground that the foundation would come from other witnesses. We observed that the prosecution are whom determined the order of their witnesses and should have first brought the witnesses whose testimonies formed the foundation for other evidence. Also, foundation aside, the prosecution’s witnesses could not be permitted to give testimonies of matters they did not themselves perceive. We would be reckless as defence attorneys not to take objections to these matters. Regrettably, the prosecution’s conduct is such that they expect to be permitted to put virtually anything before the Court and on record even if those things are not by law admissible evidence against the accused.
Most troubling of the VP’s remarks is that the Magistrate is entertaining frivolous objections by the defence; that the records should be in the public domain and that the suppression of evidence should be captured for appeal to the CCJ. The VP oftentimes tout his government as the creator of a democratic Guyanese society. A democratic society is characterised by good governance by the executive, an impartial and effective judiciary, and a legislature that articulates and passes progressive laws genuinely calculated for the benefit of the citizenry as a whole. But in our democracy, we have the executive threatening and attempting to bully the judiciary to procure outcomes which the executive desires. In just the space of two weeks we have the AG threating to take a judge before the Judicial Service Commission, and the VP accusing the magistrate in an ongoing trial of suppressing evidence and entertaining frivolous objections, and has promised that he will take her ruling to the CCJ. By inference as well, I imagine that a certain outcome is anticipated by the VP before our Court of Appeal, which we must get to before the CCJ. This does not auger well for our make-believe democracy.
And it certainly is telling that these threats and directives were issued on the Eve of Emancipation.
It is telling my people, that just two days ago, the second day of the trial, the lead prosecutor told the media, and this can be reviewed, that the magistrate shot down several of the objections raised by the defence and that the matter was moving along smoothly despite; the same magistrate who is alleged to be suppressing evidence.
Contrary to the later assertion of the lead prosecutor that the magistrate was excluding evidence, what the magistrate has said is that the matters which she has ruled inadmissible do not form part of her record for deliberations; and they properly cannot. These are matters that both the defence and prosecution submitted on and the magistrate made a ruling. No court ought to make its ultimate findings upon the basis of inadmissible evidence.
Regrettably, judges and magistrates cannot publicly defend themselves when they are accused of judicial sins. They must instead drag their cross to their own crucifixion. The politicians are the only ones who get away with impunity when they spew all these mess- the threats, the lies, and the directives.
The real corrupt actors are still walking freely without arrest. They are routinely treated to diets of administrative leave, voluntary leave, resignation, and promises of investigations…and oftentimes by the cats who are assigned to watch the milk.
Where is the invitation to the International Community then.
There is still much to be emancipated from.
Ronald J. Daniels
