“Gaymes and Findlay Scrubb Acted Fraudulently” Says Opposition Leader

Address to the nation NDP Leader Arhnim Eustace

St. Vincent and the Grenadines, I bid you good afternoon

There have been a number of recent developments in the epic that is our national fight to restore democracy, which it is my duty to bring to your immediate attention today. As the people of this nation you are entitled to know and to decide for yourselves the weight to be given this information.

The following are facts:

In our electoral system, it is the Supervisor of Elections who administers the overall conduct of the elections. She has a constitutional and statutory responsibility for their efficient and fair conduct.

(1) Section 34(1) of the Constitution of St Vincent & the Grenadines, provides that “ there shall be a Supervisor of Elections whose duty it shall be to exercise general supervision over the registration of voters in elections of Representatives and over the conduct of such elections.“ Subsection (6) thereof provides as follows: “In the exercise of his functions under the foregoing provisions of this section, the Supervisor of Elections shall not be subject to the direction or control of any other person or authority”.
(2) Under section 25(1) of the Representation of the People Act (or RPA) “for the purposes of an election, the Supervisor of Elections shall be the chief electoral officer and he shall:-
(a) Exercise general directions and supervision over the administrative conduct of the elections and enforce on the part of all elections officers, fairness, impartiality, and compliance with the provisions made by or under this Act;
(b) Issue to elections officers such instructions as she considers necessary for ensuring effective implementation of the said provisions;
(c) Execute and perform all other functions which are conferred or imposed upon her by or under this Act.”

In each constituency, the Returning Officer is the single most responsible official in the determination of the successful candidate at election.

The Returning Officer is appointed pursuant to section 26 of the RPA, and was required, after issuance of the writ by the Governor General addressed to him and forwarded via the Supervisor of Elections under section 31 of the RPA, to “proceed to hold an election in accordance with the House of Assembly Election Rules.”

Under section 33(2) thereof, it is the Returning Officer’s general duty at an election to do all such acts and things as may be necessary for effectively conducting the election in the manner provided by the Election Rules.

It is the Returning Officer, and not the Supervisor of Elections, who signs and returns the writ declaring the result and naming the winner. The Supervisor’s only role at that point is to ensure delivery of that writ to the Governor General.

Both Mrs Sylvia Findlay Scrubb and Mr Winston Gaymes, as did all other electoral officers, swore an Oath of Office under section 30 of the RPA that they shall “faithfully perform the duties pertaining” to their office “according to law, without partiality, fear, favour or affection…”.

“faithfully perform the duties pertaining” to their office “according to law, without partiality, fear, favour or affection…”

This is the second consecutive general election Mrs Sylvia Findlay Scrubb, the current Supervisor of Elections, has headed. She too, should and does know the rules governing the conduct of the elections.

In the embattled constituency of Central Leeward, no one but the Returning Officer, Mr Winston Gaymes, should and does know the rules governing the process by which the successful candidate is determined. Mr Gaymes has worked with the Electoral Office intermittently over the past 40 years.

Therefore serious miscarriages of these constitutionally and statutorily imposed duties, by these two officials at the highest levels of the State’s election machinery, are not merely instances of non-compliance but outright illegalities by design.

Consider the following partial list of illegalities:
1. ALL of the ballots used in the 2015 general elections in St. Vincent and the Grenadines were defective in design. The space reserved for the official mark of the Presiding Officer was located in the counterfoil instead of the ballot proper, in breach of the RPA. The Supervisor of Elections should and did know better.
2. Some of the ballots in the North Leeward election, the final count of which was attended by the Supervisor of Elections in person, were devoid of the official mark and counted, though rendered invalid. The respective Presiding Officers, the Returning Officer and the Supervisor of Elections should and did know better.
3. None of the ballot boxes in Central Leeward was sealed in accordance with the law. The respective Presiding Officers and the Returning Officer should and did know better.
4. At least 321 ballots were mutilated by two Presiding Officers, Mr Wallis Christopher and Ms Susan Thomas, at the CL-F1 and CL-F polling stations so that, among other things, they were devoid of the official mark when placed in the ballot box. The respective Presiding Officers should and did know better.
5. Those 321 mutilated ballots were then counted by the said Presiding Officers at the Preliminary Count even though they were invalid. The respective Presiding Officers should and did know better.
6. At the final count in Central Leeward, Mr Gaymes then counted the said 321 invalid ballots, despite the several objections of the NDP representatives at the Final Count. Mr Gaymes has stated plainly in his sworn affidavit of 21st December 2015, that he knew the said ballots were invalid and counted them nonetheless. The Returning Officer should and did know better.

In light of these and other illegalities, Mr Benjamin Exeter, the aggrieved NDP candidate in the Central Leeward election, goes to the court seeking the production and inspection of election documents, armed with photographic evidence of defectively designed ballots, mutilated ballots, incorrect statements of Presiding Officers, and improperly sealed ballot boxes.

He is encouraged so to do, by none less than the Commonwealth Observer Mission, which was not represented at the Final Count in Central Leeward, but stated in its preliminary report:
“As of today 12 December 2015, we have heard allegations of serious irregularities from one political party. We call upon those making these claims to file formal complaints as prescribed in the electoral laws, and for the relevant institutions to investigate and pronounce on these allegations.”

Mr Exeter files the application for production and inspection on the 17th December 2015, which is supported by his own affidavit and that of one of his representatives at the Final Count, Ms Maia Eustace. In those affidavits, they detail among other things the improper sealing of ballot boxes, with photos; the mutilation of ballots rendering them invalid, with photos; the counting of those invalid ballots by Mr Winston Gaymes; and importantly their objections to those irregularities.

St. Vincent and the Grenadines, how does the Office of the Supervisor of Elections respond? Paradoxically.

On the 15th December 2016, two days prior to the filing of the application, Mrs Findlay Scrubb issues a statement in the Searchlight Newspaper claiming:
“The Office [of the Supervisor of Elections] is committed to free, fair and transparent elections. The Office is equally convinced that when all the facts are known, it will be evident that the allegations which are now being made are based on misinformation, half-truths and untruths.”

Then on the 21st December 2015, six days later, lawyers acting on the instructions of Mrs Findlay Scrubb, move to prevent the facts from being known, by opposing Mr Exeter’s application for the election documents to be inspected.

Mrs Findlay Scrubb, along with Mr Gaymes and the Central Leeward election clerk, Mr Clyde Robinson, then swear affidavits repeatedly describing the allegations in the affidavits of Exeter and his said representative, as false. In other words, they accused Ben Exeter and his representative of lying.

A word on objections. The only reason for claiming that Mr Exeter and his representative lied about having made objections is that legally the making of objections is essential to the grant of an order for scrutiny of the ballots in any petition.

The judge hearing the matter, Mister Justice Brian Cottle, refuses to grant Mr Exeter’s application, and finds among other things that despite the photographic and affidavit evidence of Mr Exeter and his representative, they did not make objections to specific ballots. In other words, the allegations by Mr Exeter and his representative regarding objections were not well founded.

At page 8 of his judgment, Justice Cottle said:
“At the hearing of the application, [Mr Exeter’s lead lawyer, Queens Counsel Mr Stanley “Stalky” John] explained to the court that [Mr Exeter] and his three legal representatives were objecting to certain disputed ballots at the final count, those described as mutilated, and did not count them at the final count of the ballots. They therefore have no evidence as to for whom these ballots had been counted.”

Enter now the Organisation of American States or OAS.

A group of OAS Observers attended the final count in Central Leeward and, constituting a neutral third party, had this to say in their final report dated 13th May 2016:

“The OAS observers noted the following issues during the Final Count at this particular constituency.
“a. Incorrect application of seals: On several ballot boxes, while tie-locks had been placed in the required locations around the perimeter of the box and through the flap covering the slot, the seal was not placed across the slot itself. In some cases the seal was placed on the flat part of the box cover, in a fashion similar to a sticker. In one case (CL-D) the seal was not on the box at all, but was wrapped around one of the locks.

The NDP agents noted that in these cases they could not be certain that tampering had not taken place, and requested that the Returning Officer note their concerns.
“b. Absence of Presiding Officer stamp and initials on some ballots: In two ballot boxes, which were both incorrectly sealed, a number of ballots had neither the stamp nor initial of the Presiding Officer. As this applied to the ballots for both the ULP and the NDP, and as the relevant ballots had been cut in such a way (on the slant) so that a small portion of the ballot had been removed along with the counterfoil, it appeared that the Presiding Officer had simply removed the counterfoil in such a way that his/her stamp and initial remained on the counterfoil itself. The NDP agents requested permission to view the counterfoils to confirm that the stamp and initials were present. This request was refused by the Returning Officer. Repeated appeals and objections by the NDP agents were ignored by the Returning Officer
“c. Partiality of the Returning Officer: The bias of the Returning Officer towards the ULP candidate and agents was clear. During the period witnessed by the OAS Observers, the RO routinely ignored attempts by the NDP agents to gain his attention, responded to their concerns or objections in a dismissive or exasperated fashion, or complained that they were wasting his time. On the other hand, concerns voiced by ULP agents were immediately addressed and in one particular instance converted by the Returning Officer into a new instruction for the counting process. It was notable that the instruction was revoked only after a lead ULP agent agreed that it should be.”

Some moment has been made of the OAS comment at page 17 of their final report, wherein they stated that:
“Notwithstanding the concerns noted above, the OAS Observers did not DISCERN any fraudulent or other activities at the Final Count which could have materially affected the outcome of the vote in which the ULP candidate won by 313 votes.”

Consider the language used. The fact that the OAS did not “discern” fraudulent activities means just that. It does not mean there was no fraud. The OAS has spoken to what it did in fact observe, and correctly so.

Do the disquieting activities observed by them affect the numerical result, and is that relevant? That is strictly a matter for the court to interpret on a qualitative and/or quantitative basis, using applicable legal principles. The OAS has, without doubt, pronounced sufficiently upon the QUALITATIVE issues that plagued the conduct of the Central Leeward election.

The OAS report has grave implications for both the
The case of Gunn v Sharpe is among the authorities by which the court, on hearing the petitions, will be guided. It makes clear that dismissing the disenfranchisement of 321 voters, in other words, voters effectively losing their say in the election, is no small matter. In that case far less voters (98) in a larger constituency were disenfranchised. The court held that the election was void.

How the election is conducted is as important as the outcome. It necessarily impacts the outcome.

Further, the OAS report corroborates and therefore vindicates the affidavit evidence of Mr Exeter and his representative with respect to the improper sealing of ballot boxes, the objections to mutilated ballots, and the demonstrated impartiality of Mr Gaymes in the exercise of his duties. It speaks directly to the

The point is to be made here that the OAS was made aware by us through our contact with them about testifying, what our contentions were in the petition. And they treated specifically with precisely those concerns as raised by us. Our contact with the OAS was made a part of the public record in the affidavit of Senator Shirlan “Zita” Barnwell. While they are protected from participating in proceedings by certain immunities granted them by the Government, they have sufficiently addressed our concerns in their final report.

In their concerted efforts to hide the truth of the final count from the Vincentian electorate and to prevent the public from confirming whether in fact there has been a perversion of the democratic conduct of the elections, I can only conclude that Messrs Gaymes and Robinson are wilful in their manifest non-compliance and illegalities. In their perpetration of a series of election illegalities, I say today that as the most senior elections officers, Mr Gaymes and Mrs Findlay Scrubb have acted fraudulently in conducting the elections such that the general elections of 9th December 2015 were a travesty and a sham.

In the instance of Mrs Findlay Scrubb, her attempt to change her sworn testimony in relation to the general elections further implicates the conduct of the elections.

As for Mr Gaymes, he is no less accountable, for he confesses in his said affidavit sworn to the 21st December 2015 that he committed a grave election offence repeatedly.

Under Rule 40(1) of the House of Assembly Election Rules:
“Any ballot paper –
(a) which does not bear the official mark;

shall subject to this rule be VOID AND NOT COUNTED.”

Yet at paragraphs 16 to 18 of his affidavit Mr Gaymes says:

“The facts are as follows: when I opened the box CLF, I discovered that the ballots in this specific box did not have the initials of the presiding officer nor any official mark on the ballots. As a result, I stated that I was minded to reject all the votes in this specific box.

“Mr Exeter and his lawyers however indicated to me that they were not objecting to the ballots and consented to all the votes in box CLF being counted. That is the time and occasion I said “what is good for the goose is good for the gander”. I meant that Mr Exeter’s consent was the right thing to do as both candidates would receive and in fact received votes from this box.

“I THEREFORE COUNTED THE BALLOTS IN BOX CLF…”

The thrust of Mr Gaymes’ 16th paragraph is that he knew that he ought to reject the ballots. Mr Gaymes, much like this administration, acts with such impunity that he plainly states that he broke the law.

By virtue of section 40 of the RPA, which is sub-headed “Offences by Election Officers”:
“Any election officer who –

(f) wilfully counts any ballot paper as being cast for any candidate, which he knows or has reasonable cause to believe was not validly cast for such candidate,
IS GUILTY OF AN OFFENCE AND LIABLE, ON CONVICTION ON INDICTMENT, TO PRISON FOR TWO YEARS.”

I conclude therefore that Mr Gaymes has confessed to and did in fact commit an election offence. Such a conclusion is not only reasonable but inescapable.

But it does not end there. The respective Presiding Officers at the CLF and CLF1 polling stations counted those invalid ballots too. I submit therefore that they too — Mr Wallis Christopher and Ms Susan Thomas – have repeatedly committed the election offence.

In the public interest, I therefore announce the following measures:

1. Lawyers acting for the NDP will formally request of the Director of Public Prosecutions that he issue fiats for the institution of private criminal prosecutions of Mr Winston Gaymes, Ms Susan Thomas and Mr Wollis Christopher for repeated commission of election offences contrary to s. 40(f) RPA.

 

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