People ask why I have not written about the Election case. Well, I did not go to Court, and the case is only one element in an unsatisfactory electoral process. What all of us in Nevis should want is for everyone properly on the electoral roll to have the opportunity to vote in the constituency for which they are properly registered. Voters are supposed to register in the constituency where they live, and if they move to another constituency, they may find that someone objects (to the Registration Officer) to their name remaining on the first constituency’s list.
Until such time as their name is removed from the first constituency’s list, either following an objection, or a request by the voter that he be re-registered, he may lawfully continue to vote in the first constituency where he no longer lives. Unfortunately some of our citizenry chose originally to register where they did not live, in an attempt to help the Party of their choice. This should be an election offence. But no one has been prosecuted for it.
An election was due in 2011. The political Party advisers were not satisfied with the January 2011 lists for St. John’s. The NRP made 203 objections, the CCM 198. In a short space of time the Registration Officer (the RO) had a mass of cases to hear and to decide. The regulations as you read them give the RO the option of giving notice of the date of the hearing for a particular voter who has been objected to (the objectee) in writing (ie by ordinary post) or by registered post. At least five days notice has to be given. If notice is sent by letter there must be evidence that it was received by the objectee. Nothing is said in the Regulations about evidence of receipt being necessary if the notice is sent by the RO by registered post.
However legal authorities were produced at the trial showing that notice by registered post was inadequate if in fact it was not received, and that means received in good time. For some objectees a delay in the Post Office cut into the expected notice time. Anyway, as all of Nevis knows, the RO held hearings of objections in the absence of objectees, who had received no notice or insufficient warning of that hearing. The RO then upheld the objection and removed the voter’s name from the list.
The Court called that deliberate disenfranchisement. No one wants their name removed without the opportunity to have their say. It is wrong. It is unlawful. It is a legal nullity. That means that the original list which bears the names of those who have been unlawfully removed remains the correct list. If their names are to be removed fresh objection proceedings must take place.
Mrs. Lawrence has resigned as RO but spare a thought for whomsoever takes over. Mrs. Lawrence said that 41 out of 44 persons referred to in Part A of the First Schedule of the Petition and 96 out of 122 of the persons named in Part C to whom notices had been sent by the Post Office were returned by the Post Office for a variety of grounds including:
a. Not known
b. Unable to contact
c. Wrong address
d. Does not reside here
e. Not living at that address
Further, Mrs. Lawrence said ‘I would make enquiries personally in St. John’s, at shops and of people hanging around to ascertain whether the objectees existed or resided in the district’.
What should the new RO do over and above this? If the Post Office cannot locate the person at the address which he or she has given to the Electoral Office and the RO’s personal visit also provides no evidence of the objectees residence at the address provided, then what is he supposed to do? The objector, who will be obliged to give evidence on oath has a right also. The objector has himself to reside in the constituency, so his interest may be to ensure that his own vote is not rendered pointless by the voting of those who should not be registered as legitimate voters.
The fair-minded observer would probably accept that if both the Post Office and the RO cannot find a person at the address he has given, and that another person says under oath that person does not live there or lives somewhere else, then that concludes the matter. But I am not sure that the Court is saying that. It would be helpful for the RO to have further guidance. If a person does live at his given address the Post Office or the RO can be expected to find him there, but if he doesn’t how is that negative to be shown? And when is it safe for the RO to have a hearing in the absence of the objectee?
We then must consider the overseas voter. He is entitled to register in the constituency in which he previously resided, and if he did not reside in Nevis, then he may be registered where one of his parents resided. This is difficult to validate and can easily be abused. Until we amend the Constitution we are stuck with the rights of certain persons who live abroad to vote in our elections. This means that when Party support within Nevis is fairly evenly matched our Government may be chosen by persons living overseas who do not have to live under that Government. That is power without responsibility. It is an undesirable situation. Political parties compete to fly in these voters, a simple waste of island resources.
In the Appeal Court Judgement under the heading ‘costs’ that Court wrote: ‘…having found that the learned trial judge, in the light of the facts found by him, was wrong not to have found Mr. Parry and Mr. Daniel, Mr. Benjamin and Ms. Lawrence guilty of bad faith and misconduct in the preparation of the list used for the election, the normal rule (that each party bears its own costs unless there is some special cause to order otherwise) should not have applied.’ I have read the original Judgement and I cannot see any evidential reference suggesting that either Mr. Parry or Mr. Daniel had anything to do with the preparation of the lists, or that they knew and approved of what were later found to have been unlawful events.
Mr. Brantley in his affidavit quoted Premier Parry in a public broadcast on 15th February 2011 thus: ‘The 120 something persons were registered who did not belong to St. Johns and they better get them off, (And) several persons were in Nevis illegally and were registered in St. Johns and they better get them out. (And at a public rally) ‘The people who are trying to confuse you, you don’t let them confuse you. They must learn to respect the law. They must learn to respect the Court, and they must also learn to have clean electoral list. Then there will be no problem with the office and no problem with the Court. Let me leave that there’.
This is all completely unexceptional. What Mr. Parry seems to be saying is ‘Let us have clean electoral lists.’ There is no suggestion that this be accomplished in an unlawful fashion, or that he was aware of any unlawful actions in respect of the lists. Mr. Parry added at the same rally ‘If anybody come to you and say they can’t vote for NRP because of the list they are not NRP and they don’t intend to vote for NRP. They just out to confuse and create confusion in your mind and you need to ignore them’. I am not prepared to guess what this awkwardly worded passage means.
I haven’t found any reference in the first Judgement to Mr. Daniel’s conduct. It is a most serious matter for a Court to find a Premier and a Deputy Premier guilty of bad faith and misconduct in the preparation of the list used for the election. NRP supporters would say that of course the Premier and his deputy had nothing to do with preparation of the lists. CCM voters would claim the reverse. Their views are irrelevant to the Court. The Court does not guess, it assesses the evidence.
Here is the difficulty. A number of people in Nevis are saying that they cannot respect the Court’s Judgement and Orders in this case. Everyone must respect the Court and carry out its orders with good grace. We do not want persons who our Courts have declared to be guilty of bad faith and misfeasance in public life to remain in positions of Governmental responsibility, or to be nominated for such positions. This is an unsatisfactory situation in which the Court and politics may collide. We want the people always to be able to support and respect any decision of the Court that may have a political impact.
That is why it is tremendously important that we all be clear upon the basis of the Court’s ruling. It would be valuable, even necessary for someone, perhaps one of our QC’s, to point out to the rest of us exactly what passages in the first Judgement support clearly the findings against Mr. Parry and Mr. Daniel. I say this humbly and respectfully. I wish for the Court, the guardian of all of our freedoms, to be thought of by all our people as skilled in adducing and assessing evidence and impartial in judgement. I am uneasy that there should be anyone who might say they do not respect the Court. In the longer term, the Court is the guardian of its own respect. No Court should be disrespected if it issues a constant stream of impeccable judgements promptly after every hearing.
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