BASSETERRE, St. Kitts - ANOTHER court battle is set to begin over proposed changes to constituency boundaries but this time around the geopolitics is quite different.
On September 9, the Opposition continued their boycott of Parliament, which was convened to debate the Integrity in Public Life Bill and the Draft Proclamation on proposed boundary changes submitted by the Constituency Boundaries Commission.
Four opposition Members of Parliament filed a court injunction to restrain the Governor General, Sir Edmund Lawrence, from signing the Draft Proclamation for proposed constituency boundaries changes, using as their argument that the process to arrive at the proposed changes was unfair and disadvantageous to them.
Leader of the People’s Labour Party (PLP) Dr. Timothy Harris, Deputy Premier of Nevis and Deputy Leader of the Concerned Citizens Movement (CCM) Mark Brantley, Deputy Leader of the People’s Action Movement (PAM) Eugene Hamilton and Leader of the PAM Shawn Richards are seeking to have a judicial review of the process used to prepare the Draft Proclamation of the Constituency Boundary Commission’s Report.
The Attorney General has filed a Notice of Application to have the injunction brought by the four Opposition MP’s dismissed and the case is set to be heard on September 20.
“We continue to challenge the legitimacy of the Denzil Douglas Administration and, in our view, the government continues to function without the appropriate constitutional basis,” said Dr. Timothy Harris on behalf of Opposition members. “We see the convening of Parliament without the tabling and debate of the Motion of No Confidence as abuse of Executive power”.
Dr. Harris said that the Prime Minister was “setting the bounds for instability in this country” when he sought to arrogate onto himself the right to change the boundaries at this time when he does not command the support of the majority of MP’s”.
It was not too long ago that a long court battle over the change of constituency boundaries played out in the High Court in St. Kitts between antagonists and protagonists, politicians playing a numbers game, competing for votes and the survival of their political lives in the tiny Federation of St. Kitts and Nevis with 104 square miles and a population just under 50 000.
The year was 2009 when the Government of Prime Minister Dr. Denzil Douglas was accused of attempting to realign the constituency boundaries on the “eve of an election”. Douglas’ government was reproached for attempting to “gerrymander” the constituency boundaries.
The gruelling three-month court case saw the Opposition PAM vindicated in the Court when Justice Errol Thomas ruled that the proclamation proposing a number of changes to the constituency boundaries of St. Kitts was unconstitutional and therefore rendered null and void.
The case had seen some interesting developments and pronouncements: Prime Minister Douglas was called “a stranger to the truth” by former Resident High Court Judge Francis Belle after he took the stand in the Court; Justice Belle recused himself after lawyers for the Attorney General and the Constituency Boundaries Commission filed a Notice of Application for Recusal Order in which they charged that Justice Belle was “angry and emotional and spoke in an emotional and angry tone”. The lawyers for the government claimed that Justice Belle’s “language, anger and demeanour in the High Court showed that he (was) not able, consciously or unconsciously, of dealing fairly and impartially with the applications and claims involving the Applicants and other Respondents in the consolidated Claims. Also, Attorney General Dennis Merchant was charged for contempt of court. High Court Judge Rita Olivetti had ruled that Merchant was in contempt of court when the government defied an injunction preventing it from dealing with the report of the Constituency Boundaries Commission. Merchant was cleared of the charge by the Organisation of Eastern Caribbean Supreme Court of Appeal in September 2010.
The Government had to hold the elections on the existing boundaries; the St. Kitts-Nevis Labour Party won with six seats and 60 percent of the votes. It was a historic fourth term win.
Now again, another court battle over proposed changes to the constituency boundaries is set to begin. The charges against the Douglas Administration are very similar to the charges of 2009. His government is again accused of “dougie-mandering” the constituency boundaries and lacking transparency in the process used to come up with the proposed changes.
There is also the charge of bias and unfairness.
However, the present case is overshadowed by one thing: two Motions of No Confidence filed by the Opposition against the Government are yet to be tabled in the Parliament. The first Motion of No Confidence was filed nine months ago.
The Opposition has charged that the Motion of No Confidence, according to the Constitution, should be accorded the highest priority and should be heard expeditiously. That has not happened nine months later. Prime Minister Douglas has said that he has no moral obligation to bring the Motion of No Confidence in the absence of a date for the hearing of such in the Constitution, although Commonwealth Conventions speak to the hearing of a motion of no confidence promptly.
The Opposition has said that the Government does not command a majority of the elected representatives in the National Assembly and therefore has no moral authority to lead at this time, having only five elected representatives, while the Opposition has six.
The make-up of the Parliament shifted when two senior ministers from Douglas’ Cabinet openly disagreed with two pieces of government legislation: The Land for Debt Swap Bill and the Increase in Senators Bill, which were passed in the House. Since then, Dr. Timothy Harris was fired by Prime Minister Douglas in January of this year, followed by the resignation of Sam Condor, who was the Deputy Prime Minister.
They have formed their own party, the People’s Labour Party (PLP), and have openly campaigned against the Douglas Administration calling them “vagabonds”. Condor alleged that the Prime Minister was in breach of “good governance and constitutional integrity.
A political war has ensued between Prime Minister Douglas and his two disaffected former ministers. There have been accusations and counter-accusations to and fro. Douglas has called his former Cabinet colleagues “ungrateful” and “treacherous” while they in turn have said that he is “dictatorial”, “power-hungry”, “fiscally reckless” and the “traitor par-extraordinaire”.
The Opposition has also charged that the Government is proceeding to change the constituency boundaries using census data that is not complete.
In a letter to Peter Jenkins, Attorney General Jason Hamilton cautioned against the use of preliminary data but later referred to Article 49(3) of the Constitution which states: “The Commission may regulate its own procedure and, with the consent of the Prime Minister, may confer powers and impose duties on any public officer or on any authority of the Government for the purpose of the discharge of its functions.”
In his caution to Jenkins, Hamilton said that the use of preliminary data was not recommended because it could “lead to questions about the accuracy of the information, the accuracy of the work carried out by the Commission and the very question that is now the subject of this opinion; that is, whether the Commission ought to rely on the report”.
He also said that “in the context of our small society a marginal change may have a big impact…especially in electoral areas that are hotly contested and where the margin of victory for the winning candidate is usually slim”.
Prime Minister Douglas has repeatedly said that the constituency boundaries are in need of realignment because of great disparities in number of inhabitants.
Section 50 of the St. Kitts and Nevis Constitution of 1983 stipulates that there should be a review of the constituency boundaries at “intervals of not less than two nor more than five years” within a term of office and a report submitted by Constituency Boundaries Commission to the Governor-General.
The Report of the Commonwealth Expert Team (CET) of the 2004 General Elections made recommendations in relation to several “important issues that need to be addressed”, including a comprehensive review of constituency boundaries, a national registration and enumeration exercise, amendments to law to require wider consultation on the appointment of election staff, and the introduction of a media code of conduct and election financing rules.
Thus far, the Douglas Administration has only implemented boundaries reform and a national registration system, including an identity card for voters.
Still lacking is legislation pertaining to campaign financing. An enumeration exercise is also yet to be done. A media code of conduct should also be observed where all parties are given equal access to state-controlled media.
“The absence of such regulations or guidelines as to limits can lead to excessive spending by one party over the other, accusations of improper use of state resources for campaigning, and a lack of transparency and public accountability from the parties,” the Commonwealth Expert Team said.
The Team also noted that “while the re-confirmation process and the new voter identification procedures have improved the integrity of the roll, the changes have fallen short of fully clarifying and reforming the residency requirements under the law. All parties have conceded that the law remains open in many cases to voters “choosing” the constituency where they wish to be registered, which leaves the process vulnerable to manipulation.”
With every election, there have been accusations of padding the voter’s list with voters registered in constituencies where they do not live. This has been a thorny issue and should be addressed by the government in the interest of free and fair elections.
The report also made it clear that overseas voters should register in the constituency of their normal residence.
The Sir Lee Llewellyn Moore Legal and Judicial Complex
