By G.A. Dwyer Astaphan
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Well, Mr. Justice Errol Thomas has given his long-awaited ruling.
In it, he declared essentially that the Report of the Constituency Boundaries Commission was null and void and, accordingly, the Proclamation by the Governor-General “which purported to give effect to said Report” was also null and void.
On the first matter, the Court found that Parliament had erred when in 2006 it had adopted a resolution relating to the formation of a number of committees and to the appointment of “a Constituency Boundaries Commission”, the latter having already been in existence even in our pre-Independence Constitution, and then had encapsulated the resolution in a Standing Rule & Order (SRO).
An SRO can be of effect only if it is rooted in an Act. For example, by virtue of the authority given under the Land Acquisition Act, Chapter 273, Parliament can resolve to acquire private land and then seal the deal with an SRO.
And on the second matter, the Court found that use had been made of the Commission’s Report in breach of the injunction of 2nd July, 2009, and accordingly struck down the Proclamation.
The result: No new constituency boundaries. The old boundaries stand.
However, and also quite significantly, Mr. Justice Thomas rejected the other claims of Mr. Richards and Mr. Grant relating to bias, bad faith, constitutional rights being breached, failure to be consulted, and composition of the Constituency Boundaries Commission.
Not surprisingly, as soon as the judgment was given, the spin started, with one side claiming total victory, and the other side claiming a 99% victory.
Forgive me for appearing cynical. But isn’t it odd how political parties can win so much, yet the people of a country end up on the losers?
What is the truth?
The goal of Messrs. Richards and Grant was to have the elections contested on the old boundaries, notwithstanding their boasts that, old or new boundaries, they would win.
Did they achieve their goal?
The answer is: yes, but only as at Monday, 19th October, 2009. There may still time left before the elections are called for the Constituency Boundaries Commission to do its work, and either to recommend boundary changes or to maintain the status quo. This view, it is felt, is informed by the very judgment itself.
Now, let’s try to be honest.
Is the claim of Mr. Richards and Mr. Grant clothed in virginal purity? Is it that they truly want to see equity throughout the eleven constituencies of our Federation?
I have heard the comment that there can be a fair election on the old boundaries.
First, a fair election in a constituency-based environment is one that takes place with the voting power of each constituency being as near to equal as possible with that of any other.
Yes, the Constitution speaks to the numbers of “inhabitants”, not voters. But it is foolhardy to miss the direct correlation between the number of inhabitants and the number of voters in a constituency.
The idea is to ensure that the responsibility of taking care of the needs of the inhabitants of the Federation is shared as equitably as possible among all of the Parliamentary Representatives.
In the 2004 elections, my task was to win over as many of the 6,077 voters in St. Kitts 2 as I could, while in St.Kitts 3,4,5,6 and 7, candidates faced between 2,711 and 3,232 voters only.
What a difference!
Yes, the confirmation process which was completed in October, 2008, helped to tidy up the lists and to reduce the gaps. However, big gaps still exist.
For example, presently there are over 4,000 voters in Nevis 9, and just over 1,000 in Nevis 10.That means that a vote in Nevis 10 is worth four times the value of a vote in Nevis 9.
Indeed, there are more voters in Nevis 9 than there are in Nevis 10 and Nevis 11 combined.
Similarly, in St. Kitts three Constituencies (1, 2 and 8) each carries 3,700 to 4,300 voters, while the other Constituencies contain from 1,000 to over 1,500 fewer voters.
Whatever happened to ONE MAN, ONE VOTE?
Clearly, therefore, the old boundaries do not provide a basis for a fair election. And anyone who is arguing that the old boundaries should be used is either not seeing the big picture or is being tricky.
This is why I advocate, and have been advocating for years, for boundary changes, boundary changes that serve the mandate of the Constitution and are not motivated by favour or disfavour towards any particular political interest. Whoever wants to challenge on the basis of bias and bad faith, let them do so.
Nevis needs a redistribution, and the smaller Constituencies in St. Kitts need to come into 1, 2 and 8 from both the East and the West, and to take out good slices.
Constituencies 1, 2 and 8 have a combined total of about 12,000 voters (for an average of 4,000 voters each), which is about the same amount as, maybe even a few hundred more than, Constituencies 3,4,5,6 and 7 combined (for an average of 2,400 voters each).
The average for St. Kitts should be closer to 3,000 voters per Constituency. We don’t need to be exact or even near it. But we need to get closer to the average, taking into account all relevant considerations.
And despite the complaint that it would now be a rush job, I verily believe that it is fairer to seek as close as possible a redistribution towards balance than to engage in another election, no matter how near it is, that is based on the gross inequities that exist.
I would go further and say that it is not really a rush job, because the Government has been trying to effect boundary changes for years.
If only we had listened to me (and others), this would have been long done. All the ‘rig-ma-roll’ about Technical ‘this’ and Electoral ‘that’ would never have happened, and no successful court challenges would have been mounted. But, some of us are too damned bright for our own good.
That said, the truth is that Government has tried to effect changes and it can perhaps now clean up the mess that it has created. And if it ensures that the work done is done
transparently, elegantly, earnestly and constitutionally, we can have an election that is more democratic than the present boundaries provide for.
Which is what we ought to aim for.
My final issue relates to the present challenge by PAM of the law which was passed recently mandating would-be candidates to make an oath on Nomination Day stating that they are citizens of the Federation only and to show, if they were citizens of other nations, proof of renunciation of such other citizenship.
I am told that PAM is asking for an injunction against that law being used if an election occurs before the substantive matter is heard.
I am told that, inter alia, the concern might be related to a Returning Officer administering the oath. If so, then the concern is ill-founded, because the relevant Act allows that to happen.
Look. The National Assembly Elections Act provides a procedure whereby persons with dual citizenship can be challenged within 21 days after an election. This procedure works in relation to the Constitution.
Maybe I am missing something, but what could be wrong with the same Act to contain an even stricter precaution which states that in order to be nominated for an election, a person has to swear or affirm on Nomination Day that he or she is a citizen of the Federation only?
Does that step not prevent the people’s time, money and goodwill being wasted? Is it not better that way than for people to get themselves tied up in the courts? Why try to fool around with people that way?
What could PAM’s rational be for wanting to challenge or reject such a provision in the Act? What is PAM’s motive?
Thus far, there has been more than a little coyness with regard to the citizenship status of Messrs. Grant and Richards. Could it be that those matters are not yet settled? Could it be that other PAM candidates are being protected? Could it be that PAM is trying to slow down things?
Whatever it is, something seems to be amiss here.
