On Monday, 27th August 2012, a massive hurricane struck our Federation.
Its eye passed over a room in Charlestown, Nevis, where people were gathered to receive, by teleconferencing, two judgments of the Eastern Caribbean Court of Appeal.
The first was the long-awaited decision in what’s been described as “the Cable TV case”, an appeal brought by Mr. Vance Amory who‘d challenged the validity of a Commission of Inquiry under one Mr. Thomas Sharpe.
The judgment was delivered by His Lordship Mr. Davidson Baptiste, who found that “there was a real possibility that the machinery of the Commission was infected with bias and that there was an apparent bias against Mr. Amory”.
In other words, it appeared to be a witch hunt against Mr. Amory, and the Court of Appeal would have none of it.
This judgment doesn’t paint a flattering portrait of the NRP Administration.
But important as the first judgment was, it was the second one which really packed the knockout punch, this one being the Nevis election case following Mr. Hensley Daniel’s ‘defeat’ of Mr. Mark Brantley by 14 votes in the NIA elections of July, 2011.
In March, 2012, Mr. Justice Lionel Jones had ruled at first instance in favour of Mr. Brantley, as follows:
(i) the Registration Officer, Mrs. Bernadette Lawrence, had acted in reckless disregard of the importance of observing the rules of natural justice;
(ii) Mrs. Lawrence and the Supervisor of Elections, Mr. Leroy Benjamin, had statutory duties which they either did not carry out or which they carried out in disregard of the fundamental obligation to protect and advance the right of the elector to vote;
(iii) Mr. Brantley’s constitutional rights had been infringed by the NIA’s refusal to allow CCM any coverage on its nightly news broadcast on the Government TV newscast;
(iv) the election result in that constituency was void;
(v) the names of persons who had been disenfranchised would not be removed from the Voters’ List; and
(vi) Each party to the proceedings would pay his/its own costs.
The Appeal Court’s judgment was delivered by Acting Justice of Appeal, His Lordship Don Mitchell, with unanimous support from fellow Appeal Justices, Mrs. Janice Pereira (Acting Chief Justice) and the said Mr. Davidson Baptiste.
‘Hurricane Don’ agreed with Justice Jones on the first four points mentioned above, but he went further than Mr. Jones. And he disagreed on Items (v) and (vi).
He blew the house down, in a wonderful and beautiful way.
Here are some of the things he said:
1. “The Canadian Supreme Court has emphasized the importance of the right to vote, not only as it relates to the system of democracy which it underpins, but also as an expression of the dignity of the individual. The South African Constitutional Court has made the point that the vote of each and every citizen is badge of dignity and of personhood. Quite literally, it says that everybody counts”.
2. “The decisions to remove the names of 203 persons had no legal effect and the 203 disenfranchised voters continued to be entitled to vote”; and “the names of the voters who were unlawfully removed from the Register of Voters should be restored”.
3. “It can be inferred that Mrs. Lawrence intended to harm the objectees…She knew that people would be injured, but she forged ahead relentlessly. There was abundant evidence of bias, bad faith and misfeasance on her part”.
4. Mr. Benjamin’s conduct was “evidence of reckless indifference as to whether he was breaking the law and causing injury”.
5. “The tort of misfeasance in public office is committed when a public officer exercises his or her power specifically intending to injure someone, or when he or she acts in the knowledge of, or with reckless indifference to, the illegality of his or her acts and in the knowledge of or reckless indifference to, the probability of causing injury to someone. Subjective recklessness is established by proof that the public officer did not care whether the act was illegal or whether the circumstances happened. A deliberate omission involving an actual decision not to act might also give rise to liability”.
6.”….the Learned trial judge, in light of the facts found by him, was wrong not (my emphasis) to have found Mr. Parry and Mr. Daniel, Mr. Benjamin and Mrs. Lawrence guilty of bad faith and misconduct in the preparation of the list used for the election…”
7. There was a burden on Mr. Parry… to ensure that the government-owned media execute or perform their important constitutional role in an election campaign of giving equal time to all major political parties, this giving sustenance to the democratic process. Failure to do so runs the risk, as in this case, of the Premier being justifiably accused of being responsible for a breach of the Opposition’s fundamental right not to be discriminated against”.
And because of the misfeasance in public office by Messrs. Benjamin and Lawrence, and the bad faith and misconduct of Messrs. Parry and Daniel, Hurricane Don ordered that they, not in their official capacities, but instead in their own personas, would have to pay Mr. Brantley’s costs, both in the Court below and at the appeal, and that they are jointly and severally liable to pay these costs. This means that, if necessary, Mr. Brantley can go after any one of them to collect all of his costs.
Which could be interesting, and bloody.
Hurricane Don wanted to send a clear message: any public officer who acts or fails to act, out of willfulness, disregard or recklessness in doing so, and who, as a result, brings harm to a citizen, shall be made to pay personally.
He must’ve been repulsed by the thought, worse so by the reality, of a political party ‘winning’ an election as a result of bad faith, reckless disregard, and misconduct (misfeasance); foisting itself on an electorate which did not actually vote for it; passing laws; spending the people’s money; wounding the good name of Nevis and indeed the entire Federation; causing a citizen to seek justice, at great cost, and making the people of this country pay massive sums to lawyers to defend the wrongs perpetrated against the people themselves; and to buy as much time as possible, through legal entanglements, in the hope that the challenges might be outlasted, pockets emptied, and sufficient time elapsed, to reach to the next election, and go again.
So there now has to be yet another election in Nevis (whether by-election or full election) which will have to be paid for by…yes, the people again!
Meanwhile, Mr. Daniel can’t be properly on the NIA’s payroll as a minister or parliamentarian unless and until he is elected. Particularly troubling is a rumour that he’s now been, or is shortly to be, appointed as a special adviser to the NIA.
If this is true, then the cynicism and contempt for the law and for the people of Nevis and of St. Kitts & Nevis generally is worse than I thought. And Mr. Parry, Mr. Daniel and all NRP candidates would deserve to be punished accordingly for it at the polls.
A salary at all costs for a friend is an abomination of good leadership, especially in the public sector.
Speaking of which, on Tuesday of this week, the Prime Minister said: “I am the Minister responsible for the electoral process.”
Indeed, he is, and he has been for the past 17 years, overseeing a system that is conducted in bad faith, recklessness, deliberateness, misconduct, and misfeasance in public office. So says Hurricane Don.
The Prime Minister said that the judgment was “transformative”, that his legal advisers were assessing it so that he might be properly advised, and that “we will take the necessary action”.
But while the judgment is great, what does it tell the Prime Minister that he didn’t already know?
What’s new about it is that it has the force of law, and it puts pressure on both him and Mr. Parry that they’d rather not have right about now.
This is a case of Hurricane Don cornering the cat, and the cat is reacting badly.
The political parties in Opposition need to mount the pressure by demanding more time on government-owned media. They must police the Voters’ List thoroughly to stop any unfair and illegal ‘migrations’.
Nevisians need to convince Kittitians that coming over to vote where we don’t live will not be a wise thing to do. Indeed, Kittitians need to convince ourselves of that.
Messrs. Benjamin and Lawrence can‘t remain in their posts. I suspect that they’ll be asked to resign any time now, although the Prime Minister said yesterday that he didn’t think that either of the two officers deliberately did what they did.
Really?
Ultimately, the mess falls in his hands. It’s his mess. He created it. He knew what was going on and he let it continue. He likes it so.
And I firmly believe that, given the judicial opportunity, Hurricane Don would’ve blown him away too. He’s surely unfit for public office. We must all now capitalize on the great work of Hurricane Don, and finish the job.
