Renunciation of dual citizenship before Nomination Day

By G.A. Dwyer Astaphan

G.A. Dwyer Astaphan

(a) the Jamaica Labour Party(JLP) candidate for West Portland, Daryl Vaz, was not eligible to be a Member of Parliament because he was a US citizen at the time of the election; and

(b) that a by-election was to be held in that Constituency.

The by-election will be held on 23rd March, 2009.

This case has re-ignited debate in the Eastern Caribbean, especially with the upcoming elections in Antigua and St. Kitts & Nevis, and later in Dominica and St. Vincent & The Grenadines.

I am fairly well acquainted with the substantive law in this type of matter, if only because a case was brought against me by a constituent of mine, Mr. Esroy Dorset, on the basis of dual citizenship.

The problem with the case against me was that it came too late. Mr. Dorset might have had a chance had he taken steps within twenty-one days of the election, but he didn’t do so until about four years had passed.

He probably thought that, on the basis of Section 28 of the Constitution of the Federation of St.Kitts & Nevis, this would be a no-brainer and that I would be ousted from Parliament in a heart beat.

But as the law was eloquently outlined, first by Mr. Justice Francis Belle, and later by the Eastern Caribbean Court of Appeal, built as it is on a rock- solid foundation of election statute and case-law precedent, it must have become pellucidly clear that Mr. Dorset could find no Court of law that would see merit in his arguments, based on the facts of the his case.

And the reason is simple enough. Mr. Dorset could not succeed under the electoral law, which is the appropriate avenue of attack, but which became unavailable to him once he had failed to take action within twenty-one days following the election.

So he tried under the Constitution, which, the Courts told him, and which his advisers ought to have known, provided no avenue for him either. And some very serious judicial comments were made, and referred to, by the Courts to indicate to Mr. Dorset that the Courts are not amused when people try to use the Constitution as a back door for electoral matters.

Let me say this: I take no comfort or joy from this matter.

I did not contest the elections of 1993, 1995, 2000 and 2004, as the only candidate with dual citizenship, or with any tricks up my sleeve with regard to dual citizenship.

Nor, I am sure, did any of the many other persons, Labour, PAM and others, with dual citizenship who over the years has similarly sought public office.

And I have no proof and I am not trying t weave a web of intrigue here, but I am told that a good number, if not the majority, of PAM candidates in the elections between 1980 and 2004 have had dual citizenships.

And I have heard it said that in the elections of 2004, all of the PAM candidates except one were citizens of other countries. That is 7 out of 8 PAM candidates. I don’t know if this is true, but that is what I have been told, and by PAM persons, no less.

Meanwhile, I knew only of two Labour candidates in the last election who held dual citizenships and it would have been three in the elections of 1993 and 1995 when Dr. Bertram Charles ran in Sandy Point.

But nobody made an argument about it, one way or the other, because our political culture in St.Kitts had not considered it and seen it as an issue. That is, until it rose up in Grenada, particularly, a few years ago, after which cases elsewhere in the Caribbean were discussed, and the St.Kitts & Nevis public became more aware of it.

The result is that the culture has changed. Citizens have formed opinions on it. And it seems that a notable percentage of them are not in favour of persons with dual citizenship seeking office through the electoral process.

In light of this, I cannot see how any person with dual citizenship would be allowed to get past nomination day in future elections without being challenged.

And if any such person wishes to be a candidate, he or she would be well advised to unequivocally, immediately and publicly renounce his or her citizenship of that other country, whether it is the USA, Canada, the UK, Antigua & Barbuda, St. Lucia, Curacao, or wherever else!

Any potential candidate who, in this new culture, does not so will do himself or herself, his or her party, and the voters of this country a great disservice.

Because, in addition to making a mockery of the electoral process, he or she will force the Court into action, and force a re-election, at a great cost to all.

Now, I am told that Mr. Lindsay Grant and Mr. Shawn Richards were on the early morning WINN FM show hosted by Mr. Carlton Dupont and Mr. Washington Archibald on Saturday 28th February, 2009 (last Saturday).

And I am told that when asked about their US citizenship both said that they would renounce it by Nomination Day.

I have a problem with that. And here’s why.

When is Nomination Day? I am sure that neither of the two gentlemen knows.

And renunciation of one’s citizenship is not completed simply by sending an email to the US Embassy. There is a process which can take a while to be completed. And the US Government does not accept the renunciation just like that. It asks questions and has criteria.

Let me tell you how the process works under US law.

A person who wishes to renounce his (or her) US citizenship ( let’s call him “the renunciant”) must do the following things:

1. Admit in writing his intent to relinquish his US citizenship;
2. Make the renunciation at a US Diplomatic office outside of the USA in the presence of a US Diplomatic Officer; and
3. Make the renunciation voluntarily.

The confirmation of loss of citizenship is provided by a document called the “Certificate of Loss of Nationality” (CLN) which can take a number of months before it is delivered to, and received by, the renunciant.

So here is the problem.

If Messrs. Grant and Richards are saying that they will renounce before Nomination Day and they do not, indeed they cannot, know the date of Nomination Day at this time, how can they assure themselves, their party members, or the people of St. Kitts & Nevis generally that they will have completed their renunciation of their US citizenship by Nomination Day?

How can they assure everybody and the law that they will not still be US citizens on Nomination Day? And we know that whoever has dual citizenship on Nomination Day will be in deep trouble.

And also remember that the final confirmation of renunciation of US citizenship can take a number of months from start to finish.

Accordingly, I am calling on these two gentlemen, and on all other persons with dual citizenship (PAM, Labour, NRP, CCM and Independents alike) who wish to contest the upcoming elections, to show unequivocally, immediately and publicly the evidence of their renunciation, or the initiation of the process of renunciation, of their citizenship of such other countries of which they are citizens.

You see, the culture has changed and what was, is no more.

Until Next Time, Plenty Peace.