The decision on 21st March 2012 of Mr. Justice Lionel Jones in the Nevis election petition case involving one of the constituencies in the Nevis Island Assembly election of July 2011 is a very significant development. Although the case involves only one constituency for the Nevis Island Assembly, if the first Order made by the Judge is upheld by the Court of Appeal and the CCM candidate was to win the resulting by-election, then the present Nevis Island Government will fall. It is therefore not surprising that both political parties on Nevis are putting out heavy spin about the case.
In essence, Justice Jones made five orders and gave his reasons for each.
First, he declared the Nevis Island Assembly election for the Constituency of Nevis 2 (Parish of St. John) held on 11th July 2011 to be invalid and void. Unless this ruling is reversed by the Court of Appeal, there will have to be a by-election in that constituency.
Among the reasons why the Judge made this first part of his Order are the following:
(a) He found that “there was reckless disregard by the Registration Officer of the importance of observing the rules of natural justice” (page 141) and as a result voters whose registration was objected to were not given a fair opportunity to be heard as to why they should not be removed from the Register of Voters.
“The names of the voters who were removed from the list only occurred after hearings which were clearly in breach of the rules.”
(b) The Judge further found that a sufficiently significant number of the notices to the challenged voters were lodged at the Post Office so late that their late delivery must be blamed not on the Post Office, but on the Registration Officer.
(c) The Judge was also partly influenced by the fact that the Registration Officer Mrs. Bernadette Lawrence and the Supervisor of Elections Mr. Leroy Benjamin “had statutory duties which they either did not carry out or carried out in disregard of the fundamental obligation to protect and advance the right of the elector to vote” (page 143). As a result, the Judge did not think that the result of the election should stand in those circumstances.
The Judge said that “it cannot be seriously disputed” that numerous irregularities took place in the period leading up to the election so that the electorate did not have the opportunity of electing the candidate of their choice. These irregularities included the failure of election officials:-
(i) to publish Revised Monthly Lists;
(ii) to publish the list of objectors;
(iii) to send notices to electors in time, or at all, for hearings;
(iv) to observe the rules of natural justice in the determination of objections;
(v) to notify voters of the results of objection hearings;
and their
(vi) omission from the list of eight voters against whom objection had failed.
The core of the Judge’s reasons for his first Order is found on pages 143 and 144 of the judgment where he said:-
“It is clear to me and I am satisfied that a majority of the electors had been prevented from electing the candidate they preferred. The numbers speak for themselves. More than 200 voters were removed from the list and the margin of victory was 14 ….” and
“This case fits squarely into the category of case where there was a substantial departure from election procedure and I am satisfied that the breaches are serious.”
The Judge’s second Order was to exonerate the Electoral Commission. He refused the Petitioner’s request for a declaration that the Electoral Commission acted in contravention of the Constitution by allegedly: failing to take steps to ensure that the voters who were removed from the list were allowed to vote, and by allegedly failing to ensure that the Supervisor of Elections took steps to allow such voting.
The Judge reasoned that the Electoral Commission’s directive to the Supervisor clearly called on the Supervisor to restore the names of certain categories of voters to the list as it stood on 31st January 2011 but “The Supervisor of Elections bluntly refused to carry out the directions of the Commission.” (Page 127)
“It seems to me that there is nothing improper in the Commission taking the step it took in these special circumstances. The Supervisor’s refusal to correct what was clearly a wrong is evidence of a deliberate aim to subvert the rights of voters. He was therefore wrongly advised.”
This is a serious judicial condemnation of the Supervisor of Elections as is reflected in the Judge’s use of the words “…deliberate aim to subvert the rights of voters….”
In the “special circumstances” where names were removed from the list “behind closed doors” and without any proper opportunity to be heard, and where there was non-publication of relevant lists, “it was open to the Electoral Commission under its Constitutional mandate to direct the Chief Registration Officer to put his house in order. Let us do the right thing as it were. Restore the List as it was at January 2011. This does not prevent objections being raised thereafter….” (page 132).
The Judge gave an example of what he described as “clear demonstration of the arbitrary nature in which the Electoral Officials carried out their functions” when he pointed to an instance where “the Electoral officers took it upon themselves to restore two names to the list after the persons affected had complained directly to the Registration Officer that their names had been improperly removed”. (Page 132)
In his third Order, the Judge refused to order that the names of the voters who were unlawfully removed from the list be restored to the Voters List. The reason stated by the Judge for this aspect of his ruling was that the Petition did not expressly include a request for such relief.
In view of the strict legal timelines applicable to election petitions, that is reason enough. Unlike ordinary cases where a litigant is often permitted to correct and improve his pleaded case even fairly late in the day, election petition cases do not allow such flexibility.
And although the Judge did not say so, even if the relief had been specifically pleaded in the Petition, there are a number of reasons why the Court could still have refused to make an Order that the names be restored to the voters list. Some possible reasons include:-
(i) There are other avenues open to these voters to get back on the list.
(ii) Different circumstances may exist in relation to each such voter in terms of how they got on to the list, etc.
(iii) It is more the individual voter’s right, than the Petitioner’s right that is involved, and the petitioner/candidate is not the voter’s agent.
In his fourth Order, the Judge held that the Petitioner’s constitutional rights to freedom of expression and to not be treated in a discriminatory manner by reason of his political opinions were contravened by the failure of the Nevis Island Administration on its nightly Nevis Newscast programme to cover any of the political events organized by the Petitioner’s political party during the campaign leading up to the election of 11th July 2011.
This aspect of the Judge’s ruling is of huge importance. It will have repercussions not only in future St. Kitts-Nevis federal elections, but also throughout the Commonwealth Caribbean.
As his reason for this ruling, the Judge quoted from a Dominican Court case where Mr. Justice Hugh Rawlins (as he then was, but who is now our Chief Justice) said:-
“A State owned and operated broadcasting media is not the preserve of the political party which forms the government. It is a service that is dedicated to the use and benefit of the people of the State. It should promote and enhance the constitutional guarantee of freedom of expression which include the right to communicate and receive ideas freely.”
This aspect of the Nevis election case deserves a commentary of its own, so I will not address that issue right now, save to say that the relevant government departments dealing with news coverage and media access by opposition parties will be required to operate differently in order to avoid committing future constitutional rights violations.
In his fifth Order, the Judge ordered that each of the parties in the case should bear their own legal costs. Although as a general rule a successful party in a case usually has at least part of his legal costs ordered to be paid by the unsuccessful party or parties, a Judge has a very wide measure of discretion in determining whether or not costs should be ordered to be paid to or by a particular party.
The Judge said that the Petitioner had asked for legal costs to be paid by the Registration Officer Mrs. Lawrence and the Supervisor of Elections Mr. Leroy Benjamin due to their conduct which resulted in “the disenfranchisement of hundreds of voters.” The Judge agreed that their conduct “must be deprecated” but he said he did “not wish to set a precedent in this case.”
The Judge’s ruling on costs can be justified on a number of possible grounds:-
(i) Legal costs are not ordered as punishment.
(ii) Although the Petitioner is certainly the successful party in the election petition case, not all of his arguments prevailed.
(iii) It would have been wrong for the Judge to order the two electoral officials to pay legal costs in relation to the constitutional violations caused by the Nevis Island Administration’s media coverage.
(iv) As I said earlier, Judges have wide discretion on the issue of costs.
An appeal has been filed, and the Eastern Caribbean Court of Appeal will have the final say as to the correctness or otherwise of Justice Jones’ decision. There is no right of appeal to the Privy Council in election petition cases. A stay of the High Court’s ruling will almost surely be granted so that a by-election will not be required until after the Court of Appeal rules on the appeal.
My own view is that the Court of Appeal will not reverse the outcome of the case on the central issue as to whether there should be a by-election. I also think that it is highly unlikely that the Court of Appeal will overturn the findings of Justice Jones against the Registration Officer and the Supervisor of Elections that they grossly failed to perform their legal duties. It is difficult to see how these two election officials can remain in their respective positions, in light of these findings by Justice Jones.
There is much more that can be said about this case, but my focus in this particular Commentary was mainly what the Judge decided and why.
